What do I need to know about discrimination and the law?

What do I need to know about discrimination and the law?

It is unlawful to discriminate against a person at work or in employment services on the following grounds:

  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race, caste, ethnicity, national origin or skin colour;
  • religion or belief;
  • sex;
  • sexual orientation;
  • part-time work;
  • fixed-term work;
  • trade union membership or activities.

Equality Act 2010

The Equality Act harmonises discrimination law for the following ‘protected characteristics’:

  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race, caste, ethnicity, national origin or skin colour;
  • religion or belief;
  • sex;
  • sexual orientation.

Notably, however, it does not apply to discrimination on the grounds of part-time or fixed-term work status, or trade union membership and activities.

This article provides a brief overview of the law for each area of discrimination, both as it stands currently in June 2010 and how it will be once the Equality Act changes take effect in autumn 2010 / spring 2011.

Types of discrimination

As things stand, in some areas — for example, sex discrimination and race discrimination — there are four different types of unlawful discrimination, namely:

  • direct discrimination;
  • indirect discrimination;
  • harassment; and
  • victimisation.

The Equality Act will add a fifth type: dual discrimination. Let’s take a look at each in turn below.

1. Direct discrimination

Section 13 of the Equality Act defines direct discrimination as follows: ‘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.

(a) Associative discrimination

Associative discrimination is a type of direct discrimination and, as its name implies, occurs when someone suffers discrimination owing to their association with someone with a ‘protected characteristic’.

  • Example: If an employer discriminates against a white employee because they are married to a black person, this would be an obvious case of associative discrimination.

Currently, legislation in respect of age, gender reassignment, marriage/civil partnership and sex requires that a person complaining of direct discrimination have one of the protected characteristics him- or herself.

Once the Equality Act takes effect, however, claims for associative discrimination on the grounds of age, gender reassignment, and sex discrimination will be possible.

(b.) Perceptive discrimination

This kind of discrimination encompasses discrimination because of a person’s perceived (rather than actual) characteristic.

  • Example: If an employer discriminates against an employee on the mistaken assumption that the employee is from India, when the employee is actually from Sri Lanka, this would be an obvious case of perceptive discrimination.

Under current legislation relating to discrimination on grounds of marriage and civil partnership, a perception that a person is married or a civil partner will not suffice to ground a discrimination complaint. As above, however, once the Equality Act comes into effect this will no longer be the case.

2. Indirect discrimination

Section 19 of the Equality Act defines indirect discrimination as occurring when:

  • A applies a provision, criterion or practice (‘PCP’) to B;
  • A applies, or would apply, the PCP to persons with whom B does not share the relevant protected characteristic;
  • the PCP 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 the characteristic;
  • the PCP puts, or would put, B at that disadvantage; and
  • the PCP is not a proportionate means of achieving a legitimate aim.

This new definition will extend the scope of indirect discrimination to cover disability and gender reassignment, and harmonise the various definitions of indirect discrimination found in existing legislation.

It will also extend coverage to claimants who would be put at a particular disadvantage by the relevant PCP.

3. Harassment

Section 26 of the Equality Act states that ‘a person (A) harasses another (B) if A engages in unwanted conduct ‘related to a relevant protected characteristic’ which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B’.

Under current legislation, an employee is protected from harassment on the grounds of all of the protected characteristics (see above), except marriage and civil partnership, pregnancy and maternity, and colour and nationality.

Moreover, the concept of third-party harassment, which could apply where an employer knowingly fails to protect an employee from repeated harassment by a third party such as a customer or a supplier, applies only in the context of sex discrimination.

The Equality Act will extend protection against harassment to colour and nationality, but not to marriage and civil partnership, or pregnancy and maternity.

The Act will also extend the concept of third-party harassment to all the protected characteristics covered by the Act’s harassment provisions.

Note also that the Equality Act does not require that victims of harassment possess the ‘protected characteristic’ themselves. This will extend protection against harassment based on association and perception in much the same way as described above in relation to direct discrimination.

4. Victimisation

To prove victimisation under current legislation a claimant must show that the employer treated him or her less favourably than he treats or would treat other persons in the same circumstances, and did so by reason that the claimant has done or intends to do a protected act. Protected acts include bringing proceedings under discrimination law or making an allegation of discrimination.

Section 27 of the Equality Act extends protection by providing that: ‘A person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.’

5. Dual discrimination

Section 14 of the Equality Act will allow a claim to be brought in relation to a combination of two protected characteristics. It will mean that it will be discriminatory to treat someone less favourably because of a combination of two of the following protected characteristics: age; disability; gender reassignment; race; religion or belief; sex; or sexual orientation.

Marriage and civil partnership, and pregnancy and maternity, are not covered by the Act. In addition, the new provision only allows claims of direct dual discrimination to be brought; indirect discrimination, harassment and victimisation are excluded.

Unlike the bulk of the other provisions in the Act, which will come into force in October 2010, the dual discrimination measures will be held back until April 2011.

Getting legal help

Proving discrimination can be hard, so you should always seek the advice of a solicitor before you make a claim for compensation.


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