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Discrimination - Direct Discrimination, Indirect Discrimination and Harassment

The Equality Act 2010

On 8 April 2010, the latest amendments to the Equality Bill received the Royal Assent and became The Equality Act 2010. Most of The Equality Act 2010 will be brought into force in Autumn 2010, with the remainder being brought into force by April 2011.

The Conservatives have stated that should they win the general election, they will make some amendments to the Act. In particular they will not introduce the socio-economic duty or positive action provisions of the Bill (more below), nor some aspects of the equal pay provisions.

The Equality Act has two main purposes: to harmonise discrimination law and to strengthen the law to support progress on equality. The Act extends existing discrimination law on protected characteristics:

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

This page will cover: Direct Discrimination, Indirect Discrimination, Objective Justification, Harassment and Victimisation.

To see more topics, please go to the next page >>


Direct discrimination

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

The Government decided to retain the current approach in that a comparator is required as it believes that this reflects the fact that discrimination is about equal rather than fair treatment. By retaining the requirement for a comparator, it enables a way in which different treatment is measured.

Also, the definition uses the words ‘because of’ and not the previous used words of ‘on the grounds of’. There has been significant case law on the meaning of ‘on the grounds of’ and it remains to be seen whether or not this change creates litigation in the employment tribunals. The government stated that it did not mean to change the existing law, but intended to make the language used more accessible to the ordinary person. Yet, strangely, the explanatory notes go on to say how it does change the law by allowing claims based on both association and perception (see below).

Indirect discrimination

Clause 19 harmonises the definitions of indirect discrimination in relation to all protected characteristics and all fields of activity covered by discrimination law, and will extend the scope of indirect discrimination to cover both disability and gender reassignment.

The new definition applies to the protected characteristics and is:

  1. A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
  2. For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if:-
    1. A applies, or would apply, it to persons with whom B does not share the characteristic;
    2. it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it;
    3. it puts, or would put, B at that disadvantage; and
    4. A cannot show it to be a proportionate means of achieving a legitimate aim.

The wording “or would put” has been included to protect "deterred applicants" who may be put off from applying for a job because a provision, criterion or practice would prevent them from being successful.

Objective justification

Employment case law has held that in order for a measure to be ‘objectively justified’ it must be a "proportionate means of achieving a legitimate aim", i.e. employers must be able to justify their actions by showing that they have taken appropriate measures to achieve a reasonable aim (such as business efficiency).

The important part of the Act is the requirement to show that actions are ‘proportionate’, as it means that employers must now provide a higher level of justification for their actions than was previously required in relation to direct age discrimination and indirect discrimination.

The key change is an objective justification test being introduced in connection with indirect discrimination and discrimination arising from a disability, which replaces a subjective test under current disability legislation.

Harassment

The relevant protected characteristics are:-

  • Age
  • Disability
  • Gender reassignment;
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

You will note that pregnancy and maternity or marriage and civil partnership are excluded.

Currently, the harassment provisions under the Sex Discrimination Act 1975 (SDA) are wider than under other discrimination law and in some cases, employers have been liable for failing to prevent repeated harassment of employees by other third parties. The Act extends the same protection across all forms of discrimination.

By defining harassment as "unwanted conduct related to a relevant protected characteristic", it will extend protection to harassment based on perception and association i.e. a person who is harassed because they are wrongly perceived to be gay, would have a claim.

Victimisation

There is no practical change brought in by the Equality Bill in relation to victimisation and the current law in this area is expected to stay the same.