Introduction to Discrimination Law

Discrimination is not always unlawful. However, the law specifically prohibits discrimination on a number of grounds to protect certain groups of people.

What is the law governing discrimination?

Most of the UK’s discrimination law is found in the Equality Act 2010 which merged a number of different pieces of legislation into one Act of Parliament. These include the Sex Discrimination Act 1975, Equal Pay Act 1970, the Sexual Orientation Regulations 2003, the Race Relations Act 1976, the Disability Discrimination Act 1995 and the Employment Equality (Age) Regulations 2006

Under the Equality Act, it is illegal to discriminate against someone on grounds of any of nine ‘protected characteristics’. These characteristics are:

age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity

Discrimination means treating someone worse than another because of a protected characteristic, or it could be implementing a policy or rule or process that has a more detrimental effect on a person with a protected characteristic than someone who doesn’t. Discrimination could also be victimisation, or harassment. Harassment is unwanted conduct relating to one of those nine characteristics specifically to violate someone’s dignity, or creates a hostile, degrading, humiliating or offensive environment for them.

How is sexual orientation defined?

Sexual orientation is defined as “a sexual orientation towards persons of the same sex; persons of the opposite sex; or persons of the same sex and of the opposite sex”. Under the Equality Act, sexual orientation includes how an individual chooses to express their sexual orientation.

How is race defined?

Race is defined as colour, race, nationality, ethnic or national origins. Religion or belief is defined as ‘any religion, religious belief, or similar philosophical belief’ – including belonging to a specific denomination or sect within a religion

How is disability defined?

A disability for the purposes of the Equality Act is a physical or mental condition which has a substantial and long-term impact on an individual’s ability to do normal day to day activities. This is wide ranging and includes progressive illnesses and conditions, and some past disabilities.

Are there any other laws against discrimination?

The Part-time Workers Regulations 2000

Under these Regulations, part-time workers are protected from being treated less favourably than full-time workers because they are part time.

The Employment Act 2002 and subsequent regulations on fixed-term employees

These laws protect employees on fixed term contracts from suffering detrimental treatment compared to those who are on permanent contracts.

The Trade Union and Labour Relations (Consolidation) Act 1992)

This deals with discrimination related to trade union membership or activity or non-membership.

The Protection from Harassment Act 1997

This protects people against harassment, whatever the grounds.

How does discrimination law operate?

The Equality and Human Rights Commission (EHRC) is responsible for overseeing the legislation, recommending improvements, investigating discriminatory practices, assisting individuals and generally working towards equality of opportunity.

Employees and individuals are able to make a formal complaint if they believe they have been the subject of unlawful discrimination by an employer or an organisation, service provider, etc.

Are there any exceptions in discrimination law?

There are very few exceptions to the general prohibition on unlawful discrimination. Two issues of particular importance arise in the employment context: there is no minimum period of employment required before an employee or worker can start a discrimination claim.

Secondly, discrimination on grounds of sex, race, or religion, etc, is lawful if it is a “genuine occupational qualification or requirement”. For instance, where a black actor is required to play the role of a black character.

What forms can discrimination take?

Discrimination can take one of three forms: direct, indirect, or victimisation.

Direct discrimination

If an individual is treated less favourably than a comparator in similar circumstances on one or more of the prohibited grounds, there is direct discrimination. So this means someone is treated less favourably than a person of a different sex, race, religion, etc, or would have been treated. A suitable comparator is required, and the circumstances of the claimant and the comparator should be similar.

Indirect discrimination

This arises where an individual is treated the same as a comparator, but the result has a disproportionate detrimental impact on someone of a particular sex, race, religion etc. For there to be indirect discrimination:

  • the discriminator (eg. employer) applies a ‘provision, criterion or practice’ (PCP) to the individual which they apply or would apply equally to others of a different sex, race, religion etc.
  • the PCP puts (or would put) persons of the same sex, race, religion etc as the claimant ‘at a particular disadvantage’ when compared with others
  • It puts the claimant at that disadvantage, and
  • the discriminator cannot show the PCP to be a proportionate means of achieving a legitimate aim

Victimisation

This is where the claimant has been subjected to less favourable treatment (victimised) because they have done a ‘protected act’ such as complaining of discrimination, or helping someone else make a complaint. In St Helen’s Borough Council v Derbyshire, for instance, the court ruled that putting unreasonable pressure on an employee to settle or withdraw a discrimination claim could be victimisation.

What’s the legal remedy for unlawful discrimination?

An individual who wins a discrimination claim can expect to receive compensation. If the claim is by an employee, an employment tribunal can make a recommendation or declaration in addition to damages.