Employment discrimination law in the United Kingdom
Encyclopedia
United Kingdom employment equality law is a body of law which legislates against prejudice-based actions in the workplace. As an integral part of UK labour law it is unlawful to discriminate against a person because they have one of the "protected characteristics", which are, age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. The primary legislation is the Equality Act 2010, which outlaws discrimination in access to education, public services, private goods and services or premises in addition to employment. This follows three major European Union Directives, and is supplement by other Acts like the Protection from Harassment Act 1997
. Furthermore discrimination on the grounds of work status, as a part time worker, fixed term employee, agency worker or union membership is banned as a result of a combination of statutory instruments and the Trade Union and Labour Relations (Consolidation) Act 1992
, again following European law. Disputes are typically resolved in the workplace in consultation with an employer or trade union
, or with advice from a solicitor, ACAS
or the Citizens Advice Bureau
a claim may be brought in an employment tribunal
. The Equality Act 2006
established the Equality and Human Rights Commission, a body designed to strengthen enforcement of equality laws.
Discrimination is unlawful when an employer is hiring a person, in the terms and conditions of contract that are offered, in making a decision to dismiss a worker, or any other kind of detriment. "Direct discrimination", which means treating a person less favourably than another who lacks the protected characteristic, is always unjustified and unlawful, with the exception of age. It is lawful to discriminate against a person because of their age, however, only if there is a legitimate business justification accepted by a court. Where there is an "occupational requirement" direct discrimination is lawful, so that for instance an employer could refuse to hire a male actor to play a female role in a play, where that is indispensable for the job. "Indirect discrimination" is also unlawful, and this exists when an employer applies a policy to their workplace that affects everyone equally, but it has a disparate impact on a greater proportion of people of one group with a protected characteristic than another, and there is no good business justification for that practice. Disability differs from other protected characteristics in that employers are under a positive duty to make reasonable adjustments to their workplace to accommodate the needs of handicapped staff. For age, belief, gender, race and sexuality there is generally no positive obligation to promote equality, and positive discrimination is generally circumscribed by the principle that merit must be regarded as the most important characteristic of a person. In the field of equal pay between men and women, the rules differ in the scope for comparators. Any dismissal because of discrimination is automatically unfair and entitles a person to claim under the Employment Rights Act 1996
section 94 no matter how long they have worked.
put an end to that only at the beginning of the 19th century and in employment, religious descrimination was stopped by employment law later on. It almost went without dispute that women were marginalised from general social participation. The first changes came at municipal level, particular in the Birmingham Municipal Council from the 1830s. The Chartists from the mid 19th century, and the Suffragettes after the turn of the 20th century lobbied for universal suffrage against a conservative judiciary and a liberal political establishment. In Nairn v The University Court of the University of St Andrews (1907) a judge called Lord McLaren even proclaimed that it is
The Representation of the People Act 1918
gave the universal franchise to men, and knocked away the last barriers of wealth discrimination for the vote. But for women, only those over 30 were enfranchised, and the judiciary remained as conservative as ever. In Roberts v Hopwood (1925) a metropolitan borough council had decided to pay its workers £4 a week, whether they were men or women. The House of Lords approved the district auditor's cancellation payment for being overly gratuitous, given working class conditions. Lord Atkinson said the council had,
After a decade, the Representation of the People Act 1928
finally gave women the vote on an equal footing. Attitudes to racial prejudice in the law were set to change markedly with the proverbial "winds of change
" sweeping through the Empire after World War II
. As Britain's colonies won independence, many immigrated to the motherland, and for the first time communities of all colours were seen in London and the industrial cities of the North. The Equal Pay Act 1970
, the Sex Discrimination Act 1975
and the Race Relations Act 1976
were passed by Harold Wilson
's Labour government.
In 1972 Britain became a member of the European Community, which became the European Union
in 1992 with the agreement of the Maastrict Treaty. The Conservative government opted out of the "Social Chapter
" of the treaty which included provisions on which anti-discrimination law would be based. Although they passed the Disability Discrimination Act 1995
, it was not until Tony Blair
's "New Labour" government won the 1997 election that the UK opted into the social provisions of EU law. In 2000 the EU overhauled and introduced new Directives explicitly protecting people with a particular sexuality
, religion
, belief
and age
, as well as updating the protection against disability
, race and gender
discrimination. The law is therefore quite new, and still in a state of flux. Between the EU passing directives, and the UK government implementing them, it is apparent that the government has often failed to offer the required minimum level of protection. There are likely to be more changes soon to iron out the anomalies.
of the European Union
treaties, it mirrors a series of EU Directives. The three main Directives are the Equal Treatment Directive (Directive 2006/54/EC
, for gender), the Racial Equality Directive (2000/48/EC) and the Directive establishing a general framework for equal treatment in employment and occupation
(2000/78/EC, for religion, belief, sexuality, disability and age). Updates can be implemented automatically in domestic legislation as required by the case law of the European Court of Justice
or changes in EU legislation.
In Coleman v Attridge Law in the European Court of Justice
confirmed that a person may claim discrimination even if they are not the person with the protected characteristic, but rather they suffer unfavourable treatment because of someone they associate with.
For the protected characteristic of Age, it is a defence to a claim of direct discrimination that the discrimination is "justified" by some reason. There is no defence of justification for other protected characteristics.
" as it is known in the US) to fill up diversity quotas, or for any other purpose, is prohibited throughout Europe, because it violates the principle of equal treatment just as much as negative discrimination. There is, however, a large exception. Suppose an employer is hiring new staff, and they have 2 applications where the applicants are equally qualified for the job. If the workforce does not reflect society's makeup (e.g. that women, or ethnic minorities are under-represented) then the employer may prefer the candidate which would correct that imbalance. But they may only do so where both candidates are of equal merit, and further conditions must be met. This type of measure is also known as positive action
. Sections 158 and 159 Equality Act 2010 set out the circumstances in which positive action is allowed. Section 159, which deals with positive action in connection with recruitment and promotion (and which is the basis for the example of equally qualified applicants above), does not come into force until April 2011. The Government Equalities Office has issued a guide to the Section 159 rules. Section 158 deals with the circumstances in which positive action is permitted other than in connection with recruitment and promotion, for example in provision of training opportunities. Section 158 does not have the requirement for candidates to be equally qualified.
was felt to have shifted the balance of protection too far away from disabled people. Section 15 Equality Act 2010 creates a broad protection against being treated unfavourably "because of something arising in consequence of" the person's disability, but subject to the employer having an 'objective justification' defence if it shows its action was a legitimate means of achieving a legitimate aim. There is also a 'knowledge requirement', in that the employer has a defence if it shows it did not know, and could not reasonably be expected to know, that the person had the disability. Section 15 will apply, for example, where a disabled person is dismissed due to a long absence from work which resulted from their disability - the issue will be whether the employer can show the 'objective justification' defence applies (assuming the 'knowledge requirement' is met).
The reasonable adjustment duty is particularly important. The duty can apply where a disabled person is put at a 'substantial' disadvantage in comparison with non-disabled people by a 'provision, criterion or practice' or by a physical feature. The employer's obligation is, broadly, to take such steps as it is reasonable to have to take to avoid the disadvantage (s 20 Equality Act 2010). 'Substantial' means only more than minor or trivial (s 212(1) Equality Act 2010). A further strand of the duty can require an employer to provide an auxiliary aid or service (s 20(5) Equality Act 2010). There are provisions dealing with employer's lack of knowledge of the disability (Equality Act 2010 Sch 8 para 20).
Employers should actively pursue policies to accommodate protected groups into the workforce. This duty is made explicit in law for pregnant women and for people who are disabled. For people with religious sensitivities, particularly the desire to worship during work cases show there is no duty, but employers should apply their minds to accommodating their employee's wishes even if they ultimately decide not to.
was the establishment of a new Equality and Human Rights Commission, subsuming specialist bodies from before. Its role is in research, promotion, raising awareness and enforcement of equality standards. For lawyers, the most important work of predecessors has been strategic litigation (advising and funding cases which could significantly advance the law) and developing codes of best practice for employers to use. Around 20,000 discrimination cases are brought each year to UK tribunals.
and the Sex Discrimination Act 1975
were introduced. Also, in 1972, the UK joined the European Community (now the EU). Article 141(1) of the Treaty of the European Community states,
Equal pay
race discrimination case (also known as the Bournville College Racial Harassment issue), an Industrial Tribunal decided that a trade union’s principal obligation in race harassment cases is to protect the tenure of the accused employee. A member of a trade union making a complaint of workplace harassment against a fellow employee was not entitled to union advice and assistance, irrespective of the merit of the case, because the employee complained against could lose his job. The Employment Appeal Tribunal upheld the decision and extended the decision to cover complaints of sexist harassment.
Discrimination on grounds of religion was previously covered in an ad hoc way for Muslims and Sikhs through the race discrimination provisions. The new regulations were introduced to comply with the EU Framework Directive 2000/78/EC on religion or belief, age, sexuality and disability.
was meant to be the third pillar in this programme. Discrimination against union members is also a serious problem, for the obvious reason that some employers view unionisation as threat to their right to manage.
law of other countries
American law
Trade Unions
Non-permanent workers
Protected characteristics
Other websites
Protection from Harassment Act 1997
The Protection from Harassment Act 1997 is a piece of United Kingdom law which, among other things, criminalises and creates a right to protection from stalking and persistent bullying in the workplace.-Definition:...
. Furthermore discrimination on the grounds of work status, as a part time worker, fixed term employee, agency worker or union membership is banned as a result of a combination of statutory instruments and the Trade Union and Labour Relations (Consolidation) Act 1992
Trade Union and Labour Relations (Consolidation) Act 1992
The Trade Union and Labour Relations Act 1992 is a UK Act of Parliament which regulates British labour law. The Act applies in full in England and Wales and in Scotland, and partially in Northern Ireland....
, again following European law. Disputes are typically resolved in the workplace in consultation with an employer or trade union
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
, or with advice from a solicitor, ACAS
ACAS
ACAS may refer to:In aviation:* Airborne Collision Avoidance System, an International Civil Aviation Organization standard* Assistant Chief of the Air Staff, a senior appointment in the Royal Air ForceIn other fields:...
or the Citizens Advice Bureau
Citizens Advice Bureau
A Citizens Advice Bureau is one of a network of independent charities throughout the UK that give free, confidential information and advice to help people with their money, legal, consumer and other problems....
a claim may be brought in an employment tribunal
Employment tribunal
Employment Tribunals are tribunal non-departmental public bodies in England and Wales and Scotland which have statutory jurisdiction to hear many kinds of disputes between employers and employees. The most common disputes are concerned with unfair dismissal, redundancy payments and employment...
. The Equality Act 2006
Equality Act 2006
The Equality Act 2006 is an Act of the Parliament of the United Kingdom covering the United Kingdom. The 2006 Act is a precursor to the Equality Act 2010, which combines all of the equality enactments within Great Britain and provide comparable protections across all equality strands...
established the Equality and Human Rights Commission, a body designed to strengthen enforcement of equality laws.
Discrimination is unlawful when an employer is hiring a person, in the terms and conditions of contract that are offered, in making a decision to dismiss a worker, or any other kind of detriment. "Direct discrimination", which means treating a person less favourably than another who lacks the protected characteristic, is always unjustified and unlawful, with the exception of age. It is lawful to discriminate against a person because of their age, however, only if there is a legitimate business justification accepted by a court. Where there is an "occupational requirement" direct discrimination is lawful, so that for instance an employer could refuse to hire a male actor to play a female role in a play, where that is indispensable for the job. "Indirect discrimination" is also unlawful, and this exists when an employer applies a policy to their workplace that affects everyone equally, but it has a disparate impact on a greater proportion of people of one group with a protected characteristic than another, and there is no good business justification for that practice. Disability differs from other protected characteristics in that employers are under a positive duty to make reasonable adjustments to their workplace to accommodate the needs of handicapped staff. For age, belief, gender, race and sexuality there is generally no positive obligation to promote equality, and positive discrimination is generally circumscribed by the principle that merit must be regarded as the most important characteristic of a person. In the field of equal pay between men and women, the rules differ in the scope for comparators. Any dismissal because of discrimination is automatically unfair and entitles a person to claim under the Employment Rights Act 1996
Employment Rights Act 1996
The Employment Rights Act 1996 is a United Kingdom Act of Parliament passed by the Conservative government to codify the existing law on individual rights in UK labour law. Previous statutes, dating from the Contracts of Employment Act 1963, included the Redundancy Payments Act 1965, the...
section 94 no matter how long they have worked.
History
Anti-discrimination law is a recent development. The old common law approach, and Acts of Parliament were directly discriminatory. They engendered the old prejudices of a class based society which saw white, private school educated men as the only legitimate heirs to places of political and economic power. Like all countries, religious discrimination was also rife, but particularly against Catholics and Jews. The Catholic Emancipation ActsCatholic Emancipation
Catholic emancipation or Catholic relief was a process in Great Britain and Ireland in the late 18th century and early 19th century which involved reducing and removing many of the restrictions on Roman Catholics which had been introduced by the Act of Uniformity, the Test Acts and the penal laws...
put an end to that only at the beginning of the 19th century and in employment, religious descrimination was stopped by employment law later on. It almost went without dispute that women were marginalised from general social participation. The first changes came at municipal level, particular in the Birmingham Municipal Council from the 1830s. The Chartists from the mid 19th century, and the Suffragettes after the turn of the 20th century lobbied for universal suffrage against a conservative judiciary and a liberal political establishment. In Nairn v The University Court of the University of St Andrews (1907) a judge called Lord McLaren even proclaimed that it is
"a principle of the unwritten constitutional law of this country that men only were entitled to take part in the election of representatives to Parliament."
Representation of the People Act 1918
The Representation of the People Act 1918 was an Act of Parliament passed to reform the electoral system in the United Kingdom. It is sometimes known as the Fourth Reform Act...
gave the universal franchise to men, and knocked away the last barriers of wealth discrimination for the vote. But for women, only those over 30 were enfranchised, and the judiciary remained as conservative as ever. In Roberts v Hopwood (1925) a metropolitan borough council had decided to pay its workers £4 a week, whether they were men or women. The House of Lords approved the district auditor's cancellation payment for being overly gratuitous, given working class conditions. Lord Atkinson said the council had,
"allowed themselves to be guided in preference by some eccentric principles of socialisticSocialismSocialism is an economic system characterized by social ownership of the means of production and cooperative management of the economy; or a political philosophy advocating such a system. "Social ownership" may refer to any one of, or a combination of, the following: cooperative enterprises,...
philanthropyPhilanthropyPhilanthropy etymologically means "the love of humanity"—love in the sense of caring for, nourishing, developing, or enhancing; humanity in the sense of "what it is to be human," or "human potential." In modern practical terms, it is "private initiatives for public good, focusing on quality of...
, or by a feministFeminismFeminism is a collection of movements aimed at defining, establishing, and defending equal political, economic, and social rights and equal opportunities for women. Its concepts overlap with those of women's rights...
ambition to secure the equality of the sexes in the matter of wages in the world of labour."
After a decade, the Representation of the People Act 1928
Representation of the People Act 1928
The Representation of the People Act 1928 was an Act of the Parliament of the United Kingdom. This act expanded on the Representation of the People Act 1918 which had given some women the vote in Parliamentary elections for the first time after World War I. It widened suffrage by giving women...
finally gave women the vote on an equal footing. Attitudes to racial prejudice in the law were set to change markedly with the proverbial "winds of change
Winds of Change
Winds of Change is a fantasy novel by Mercedes Lackey. It is the second book in the Mage Winds Trilogy, in order between Winds of Fate and Winds of Fury. The book was first released in August 1994.- Synopsis :...
" sweeping through the Empire after World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
. As Britain's colonies won independence, many immigrated to the motherland, and for the first time communities of all colours were seen in London and the industrial cities of the North. The Equal Pay Act 1970
Equal Pay Act 1970
The Equal Pay Act 1970 is an Act of the United Kingdom Parliament which prohibits any less favourable treatment between men and women in terms of pay and conditions of employment. It was passed by Parliament in the aftermath of the 1968 Ford sewing machinists strike and came into force on 29...
, the Sex Discrimination Act 1975
Sex Discrimination Act 1975
The Sex Discrimination Act 1975 is an Act of the Parliament of the United Kingdom which protected men and women from discrimination on the grounds of sex or marriage. The Act concerned employment, training, education, harassment, the provision of goods and services, and the disposal of premises...
and the Race Relations Act 1976
Race Relations Act 1976
The Race Relations Act 1976 was established by the Parliament of the United Kingdom to prevent discrimination on the grounds of race.Items that are covered include discrimination on the grounds of race, colour, nationality, ethnic and national origin in the fields of employment, the provision of...
were passed by Harold Wilson
Harold Wilson
James Harold Wilson, Baron Wilson of Rievaulx, KG, OBE, FRS, FSS, PC was a British Labour Member of Parliament, Leader of the Labour Party. He was twice Prime Minister of the United Kingdom during the 1960s and 1970s, winning four general elections, including a minority government after the...
's Labour government.
In 1972 Britain became a member of the European Community, which became the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
in 1992 with the agreement of the Maastrict Treaty. The Conservative government opted out of the "Social Chapter
Social Chapter
The Social Chapter is the chapter of the 1997 Treaty of Amsterdam covering social policy issues, such as promotion of employment and improved living and working conditions. Prior to the Treaty of Amsterdam the "Agreement on Social Policy" protocol of the 1992 Maastricht Treaty was known as the...
" of the treaty which included provisions on which anti-discrimination law would be based. Although they passed the Disability Discrimination Act 1995
Disability Discrimination Act 1995
The Disability Discrimination Act 1995 is an Act of the Parliament of the United Kingdom which has now been repealed and replaced by the Equality Act 2010 , except in Northern Ireland where the Act still applies...
, it was not until Tony Blair
Tony Blair
Anthony Charles Lynton Blair is a former British Labour Party politician who served as the Prime Minister of the United Kingdom from 2 May 1997 to 27 June 2007. He was the Member of Parliament for Sedgefield from 1983 to 2007 and Leader of the Labour Party from 1994 to 2007...
's "New Labour" government won the 1997 election that the UK opted into the social provisions of EU law. In 2000 the EU overhauled and introduced new Directives explicitly protecting people with a particular sexuality
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
, religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
, belief
Belief
Belief is the psychological state in which an individual holds a proposition or premise to be true.-Belief, knowledge and epistemology:The terms belief and knowledge are used differently in philosophy....
and age
Ageing
Ageing or aging is the accumulation of changes in a person over time. Ageing in humans refers to a multidimensional process of physical, psychological, and social change. Some dimensions of ageing grow and expand over time, while others decline...
, as well as updating the protection against disability
Disability
A disability may be physical, cognitive, mental, sensory, emotional, developmental or some combination of these.Many people would rather be referred to as a person with a disability instead of handicapped...
, race and gender
Gender
Gender is a range of characteristics used to distinguish between males and females, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity...
discrimination. The law is therefore quite new, and still in a state of flux. Between the EU passing directives, and the UK government implementing them, it is apparent that the government has often failed to offer the required minimum level of protection. There are likely to be more changes soon to iron out the anomalies.
Equality framework
Equality legislation in the UK, formerly in separate Acts and regulations for each protected characteristic, is now primarily found in the Equality Act 2010. Particularly since the United Kingdom joined the Social ChapterSocial Chapter
The Social Chapter is the chapter of the 1997 Treaty of Amsterdam covering social policy issues, such as promotion of employment and improved living and working conditions. Prior to the Treaty of Amsterdam the "Agreement on Social Policy" protocol of the 1992 Maastricht Treaty was known as the...
of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
treaties, it mirrors a series of EU Directives. The three main Directives are the Equal Treatment Directive (Directive 2006/54/EC
Directive 2006/54/EC
Since the Treaty of Amsterdam came into force in 1999, new EU laws, or Directives, have been enacted in the area of anti-discrimination.The Council Directive 2006/54/EC Since the Treaty of Amsterdam came into force in 1999, new EU laws, or Directives, have been enacted in the area of...
, for gender), the Racial Equality Directive (2000/48/EC) and the Directive establishing a general framework for equal treatment in employment and occupation
Directive establishing a general framework for equal treatment in employment and occupation
Since the Treaty of Amsterdam came into force in 1999, new EU laws, or Directives, have been enacted in the area of anti-discrimination.The Council Directive 2000/78/EC implements the principle of equal treatment in the area of employment, covering disability, religion or belief,...
(2000/78/EC, for religion, belief, sexuality, disability and age). Updates can be implemented automatically in domestic legislation as required by the case law of the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
or changes in EU legislation.
Direct discrimination
Direct discrimination occurs when an employer treats someone less favourably on the ground of a protected characteristic. It is unlawful under section 13 of the Equality Act 2010. A protected characteristic (age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation) must be the reason for the different treatment, so that it is because of that characteristic that the less favourable treatment occurs. Generally, the law protects everyone, not just a group perceived to suffer discrimination. Therefore it is unlawful to treat a man less favourably than a woman, or a woman less favourably than a man, on the ground of the person's sex. However people who are single are not protected against more favourable treatment of people in marriage or civil partnership, and non-disabled people are not protected if a disabled person is treated more favourably.In Coleman v Attridge Law in the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
confirmed that a person may claim discrimination even if they are not the person with the protected characteristic, but rather they suffer unfavourable treatment because of someone they associate with.
For the protected characteristic of Age, it is a defence to a claim of direct discrimination that the discrimination is "justified" by some reason. There is no defence of justification for other protected characteristics.
Harassment
Under the Equality Act 2010 section 26, a person harasses another if he or she engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating the other's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other. It is also harassment if a person treats another less favourably because the other has rejected or submitted to unwanted conduct of a sexual nature.Victimisation
The definition of "victimisation" is found in the Equality Act 2010 section 27. It refers to subjecting a person to a further detriment after they try to complain or bring proceedings in connection with discrimination, on their own behalf or on behalf of someone else.Indirect discrimination
"Indirect" discrimination is unlawful under the Equality Act 2010 section 19. It involves the application of a provision, criterion or practice to everyone, which has a disproportionate effect on some people and is not objectively justified. For instance, a requirement that applicants for a job be over a certain height would have a greater impact on women than on men, as the average height of women is lower than that of men. It is a defence for the employer to show that the requirement is “a proportionate means of achieving a legitimate aim”.- Ojutiku v Manpower Services Commission [1982] EWCA Civ 3, [1982] ICR 661
- R (Schaffter) v Secretary of State for Education [1987] IRLR 53
- Rainey v Greater Glasgow Health BoardRainey v Greater Glasgow Health BoardRainey v Greater Glasgow Health Board [1987] IRLR 26 is a UK labour law case concerning the justifications for unequal pay.-Facts:Ms Rainey was a prosthetist. Men had been recruited from private practice, to the Board’s new prosthetic fitting service, which had previously been done by private...
[1987] AC 224 - Clymo v Wandsworth London Borough Council [1989] ICR 250
- Enderby v Frenchay Health AuthorityEnderby v Frenchay Health AuthorityEnderby v Frenchay Health Authority is an EU labour law, relevant for UK labour law, that concerns the justification test for unequal pay between men and women.-Facts:...
(C-127/92) [1994] ICR 112 - R (Equal Opportunities Commission) v Secretary of State for Trade and Industry [1995] 1 AC 1
- Staffordshire County Council v Black [1995] IRLR 234
- R (Seymour Smith) v Secretary of State for Employment [2000] ICR 244
- Rutherford v Secretary of State for Trade and Industry (No 2) [2006] UKHL 19
Positive action
Discrimination law is "blind" in that motive is irrelevant to discrimination and both minorities or majorities could make discrimination claims if they suffer less favourable treatment. Positive discrimination (or "affirmative actionAffirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
" as it is known in the US) to fill up diversity quotas, or for any other purpose, is prohibited throughout Europe, because it violates the principle of equal treatment just as much as negative discrimination. There is, however, a large exception. Suppose an employer is hiring new staff, and they have 2 applications where the applicants are equally qualified for the job. If the workforce does not reflect society's makeup (e.g. that women, or ethnic minorities are under-represented) then the employer may prefer the candidate which would correct that imbalance. But they may only do so where both candidates are of equal merit, and further conditions must be met. This type of measure is also known as positive action
Positive action
Positive action is a controversial term, roughly synonymous with affirmative action, used in identity politics currents to connote promotion of people based on belonging to non majority identity groups in the workplace, educational institutions and positions in society, purpotedly without...
. Sections 158 and 159 Equality Act 2010 set out the circumstances in which positive action is allowed. Section 159, which deals with positive action in connection with recruitment and promotion (and which is the basis for the example of equally qualified applicants above), does not come into force until April 2011. The Government Equalities Office has issued a guide to the Section 159 rules. Section 158 deals with the circumstances in which positive action is permitted other than in connection with recruitment and promotion, for example in provision of training opportunities. Section 158 does not have the requirement for candidates to be equally qualified.
Disability claims
The normal types of claim apply to disability, but additional types of claim are particular to it. These are 'discrimination arising from disability' and the reasonable adjustment duty. "Discrimination arising from disability" was a newly formulated test introduced after the House of Lords decision in Lewisham LBC v Malcolm and EHRCLewisham LBC v Malcolm and EHRC
Lewisham LBC v Malcolm [2008] UKHL 43 is a case on the application of equality legislation in the United Kingdom, relevant for UK labour law, concerning disability discrimination....
was felt to have shifted the balance of protection too far away from disabled people. Section 15 Equality Act 2010 creates a broad protection against being treated unfavourably "because of something arising in consequence of" the person's disability, but subject to the employer having an 'objective justification' defence if it shows its action was a legitimate means of achieving a legitimate aim. There is also a 'knowledge requirement', in that the employer has a defence if it shows it did not know, and could not reasonably be expected to know, that the person had the disability. Section 15 will apply, for example, where a disabled person is dismissed due to a long absence from work which resulted from their disability - the issue will be whether the employer can show the 'objective justification' defence applies (assuming the 'knowledge requirement' is met).
The reasonable adjustment duty is particularly important. The duty can apply where a disabled person is put at a 'substantial' disadvantage in comparison with non-disabled people by a 'provision, criterion or practice' or by a physical feature. The employer's obligation is, broadly, to take such steps as it is reasonable to have to take to avoid the disadvantage (s 20 Equality Act 2010). 'Substantial' means only more than minor or trivial (s 212(1) Equality Act 2010). A further strand of the duty can require an employer to provide an auxiliary aid or service (s 20(5) Equality Act 2010). There are provisions dealing with employer's lack of knowledge of the disability (Equality Act 2010 Sch 8 para 20).
Employers should actively pursue policies to accommodate protected groups into the workforce. This duty is made explicit in law for pregnant women and for people who are disabled. For people with religious sensitivities, particularly the desire to worship during work cases show there is no duty, but employers should apply their minds to accommodating their employee's wishes even if they ultimately decide not to.
Enforcement
The main outcome of the Equality Act 2006Equality Act 2006
The Equality Act 2006 is an Act of the Parliament of the United Kingdom covering the United Kingdom. The 2006 Act is a precursor to the Equality Act 2010, which combines all of the equality enactments within Great Britain and provide comparable protections across all equality strands...
was the establishment of a new Equality and Human Rights Commission, subsuming specialist bodies from before. Its role is in research, promotion, raising awareness and enforcement of equality standards. For lawyers, the most important work of predecessors has been strategic litigation (advising and funding cases which could significantly advance the law) and developing codes of best practice for employers to use. Around 20,000 discrimination cases are brought each year to UK tribunals.
Occupational Requirement
Under the Equality Act 2010 Sch 9, a number of defences are available to employers who have policies which discriminate. An "occupational requirement" refers to exceptions to the prohibition on direct discrimination. An example could be a theatre requiring an actor of Black African origin to play a Black African character. An employer has the burden of showing that they genuinely need somebody of a particular gender, race, religion, etc., for the job. These exceptions are few.Material Difference
Under section 23 of the Equality Act, in order to show that there has been discrimination, the claimant must show that there is no material difference between the claimant and the other person, or "comparator", who does not share the same protected characteristic. If the respondent can show that there is another cause for the different treatment, not related to the protected characteristic, then the claim will fail.Justification
It is a defence to a claim of unlawful indirect discrimination, and also to a claim of direct discrimination on the ground of age, that the discriminatory act is "a proportionate means of achieving a legitimate aim" (sections 13(2) and 19).Equality protection
People with a protected characteristic are protected from discrimination in employment, and in access to services, education, premises, and associations. Examples of prohibited discrimination include as customers, in social security, access to education and other public services. The UK Labour Government codified and strengthened the disparate heads of protection into a single act, namely the Equality Act 2010.Gender
In the UK, equality between sexes has been a principle of employment law on since the 1970s, when the Equal Pay Act 1970Equal Pay Act 1970
The Equal Pay Act 1970 is an Act of the United Kingdom Parliament which prohibits any less favourable treatment between men and women in terms of pay and conditions of employment. It was passed by Parliament in the aftermath of the 1968 Ford sewing machinists strike and came into force on 29...
and the Sex Discrimination Act 1975
Sex Discrimination Act 1975
The Sex Discrimination Act 1975 is an Act of the Parliament of the United Kingdom which protected men and women from discrimination on the grounds of sex or marriage. The Act concerned employment, training, education, harassment, the provision of goods and services, and the disposal of premises...
were introduced. Also, in 1972, the UK joined the European Community (now the EU). Article 141(1) of the Treaty of the European Community states,
"Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied."
- Directive 2006/54/ECDirective 2006/54/ECSince the Treaty of Amsterdam came into force in 1999, new EU laws, or Directives, have been enacted in the area of anti-discrimination.The Council Directive 2006/54/EC Since the Treaty of Amsterdam came into force in 1999, new EU laws, or Directives, have been enacted in the area of...
"on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation".
Equal pay
- Villalba v Merrill Lynch & Co IncVillalba v Merrill Lynch & Co IncVillalba v Merrill Lynch & Co Inc [2007] is a UK labour law case, concerning sex discrimination and equal pay. It was the largest claim to be lodged in the United Kingdom, but was rejected in the Employment Tribunal and on appeal.-Facts:...
[2007] ICR 469
Race
In the Weaver v NATFHEWeaver v NATFHE
Weaver v National Association of Teachers in Further and Higher Education EAT is a UK labour law case, concerning racial discrimination.-Facts:...
race discrimination case (also known as the Bournville College Racial Harassment issue), an Industrial Tribunal decided that a trade union’s principal obligation in race harassment cases is to protect the tenure of the accused employee. A member of a trade union making a complaint of workplace harassment against a fellow employee was not entitled to union advice and assistance, irrespective of the merit of the case, because the employee complained against could lose his job. The Employment Appeal Tribunal upheld the decision and extended the decision to cover complaints of sexist harassment.
- Ghai v Newcastle City Council [2010] EWCA Civ 59
Disability
- Disability Discrimination (Meaning of Disability) Regulations 1996, (SI 1996/1455) esp. rr.3-5
- Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability from the Department for Work and PensionsDepartment for Work and PensionsThe Department for Work and Pensions is the largest government department in the United Kingdom, created on June 8, 2001 from the merger of the employment part of the Department for Education and Employment and the Department of Social Security and headed by the Secretary of State for Work and...
website, esp Part II, para A1; "a substantial effect [under s.1(1) DDA 1995] is one which is more than "minor" or "trivial", and provides that tribunals ought to have regard, in deciding whether an impairment has such an effect to" things like time for relevant activities, the way they are done, impairments' cumulative effects and the effects of behaviour and environment.
- Aylott v Stockton-on-Tees Borough Council [2010] EWCA Civ 910
- Thaine v London School of Economics [2010] ICR 1422
- Clark v TDG Ltd (t/a Novacold Ltd) [1999] IRLR 318
- Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19
Sexuality
- Employment Equality (Sexual Orientation) Regulations 2003 SI 2003/1661 (in effect from 1 December 2003)
- Equality Act (Sexual Orientation) RegulationsEquality Act (Sexual Orientation) RegulationsThe Equality Act Regulations are secondary legislation in the United Kingdom, outlawing discrimination in the provision of goods, facilities, services, education and public functions on the grounds of sexual orientation....
Religion or belief
While direct discrimination on grounds of religion or belief is automatically unlawful, the nature of religions or beliefs leads to the conclusion that objective justification for disparate impact is easier. Beliefs often lead adherents to the need to manifest their closely held views, in a way which may conflict with ordinary requirements of the work place. There is not the same degree of privilege granted to beliefs as is to a disability, requiring "reasonable adjustments" for the wishes of the believer. So in cases where an adherent to a religion wishes to take time off to pray, or wear a particular article of clothing or jewellery, it will usually be within the right of the employer to insist that the contract of employment is performed as was initially agreed. This refusal of the law to grant privileged status to beliefs may reflect the element of choice in belief or the need of a secular society to treat all people, whether believers or not, equally.Discrimination on grounds of religion was previously covered in an ad hoc way for Muslims and Sikhs through the race discrimination provisions. The new regulations were introduced to comply with the EU Framework Directive 2000/78/EC on religion or belief, age, sexuality and disability.
- Article 9 ECHRArticle 9 ECHRArticle 9 of the European Convention on Human Rights provides a right to freedom of thought, conscience and religion. This includes the freedom to change a religion or belief, and to manifest a religion or belief in worship, teaching, practice and observance, subject to certain restrictions that...
- Freedom of religion - Islington LBC v Ladele [2009] EWCA Civ 1357
Age
- Employment Equality (Age) Regulations 2006, SI 2006/1031 (now repealed and replaced by the Equality Act 2010)
- Seldon v Clarkson Wright & Jakes and another [2010] EWCA Civ 899
Work status protection
More recently, two measures have been introduced, and one has been proposed, to prohibit discrimination in employment based on atypical work patterns, for employees who are not considered permanent. The Part-time Workers Regulations and the Fixed-term Employee Regulations were partly introduced to remedy the pay gap between men and women. The reason is, women are far more likely to be doing non-full-time permanent jobs. However following the Treaty of Amsterdam, a new Article 13 promised Community action to remedy inequalities generally. The abortive Agency Workers DirectiveAgency Workers Directive
The EU Temporary and Agency Workers Directive is an EU Directive agreed in November 2008 which seeks to guarantee those working through employment agencies equal pay and conditions with employees in the same business who do the same work...
was meant to be the third pillar in this programme. Discrimination against union members is also a serious problem, for the obvious reason that some employers view unionisation as threat to their right to manage.
Part time workers
- Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000The Part-time Workers Regulations 2000 is a UK labour law measure which requires that employers give people on part time contracts equal pay to people on full time contracts who do the same jobs. It implements EU Directive 97/81/EC, and forms part of the European Unions programme to combat...
, SI 2000/1551 - McMenemy v Capital Business Ltd [2007] IRLR 400
- Sharma v Manchester City Council [2008] IRLR 336
- Matthews v Kent & Medway Towns Fire Authority [2006] IRLR 367
- A McColgan, 'Missing the point?' (2000) 29 Industrial Law JournalIndustrial Law JournalThe Industrial Law Journal is a legal journal which publishes articles in the field of labour and employment law, published quarterly by the Industrial Law Society in the United Kingdom, and founded in 1971....
260
- O'Brien v Ministry of Justice [2010] UKSC 34
Fixed term "employees"
- Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002Fixed Term Employees Regulations 2002 form a UK statutory instrument aimed to protect employees who have fixed term contracts...
, SI 2002/2034
Agency workers
- Temporary and Agency Workers (Equal Treatment) Bill 2008
- Agency Workers DirectiveAgency Workers DirectiveThe EU Temporary and Agency Workers Directive is an EU Directive agreed in November 2008 which seeks to guarantee those working through employment agencies equal pay and conditions with employees in the same business who do the same work...
Union members
- Amalgamated Society of Railway Servants v Osborne [1910] AC 87, Lords Shaw and James said trade union support for MPs was ‘unconstitutional and illegal’. Reversed in 1913.
- Article 11 ECHRArticle 11 ECHRArticle 11 of the European Convention on Human Rights protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".-Case law:*Plattform "Ärzte für das...
- Public Interest Disclosure Act 1998Public Interest Disclosure Act 1998The Public Interest Disclosure Act 1998 is an Act of the Parliament of the United Kingdom that protects whistleblowers from detrimental treatment by their employer...
- O'Kelly v Trusthouse Forte plc
- Wilson and Palmer v United KingdomWilson and Palmer v United KingdomWilson v United Kingdom [2002] is a UK labour law and European labour law case concerning discrimination by employers against their workers who join and take action through trade unions...
- TULRCA 1992 ss 137-177
See also
British Law- British labour lawBritish labour lawUnited Kingdom labour law involves the legal relationship between workers, employers and trade unions. People at work in the UK benefit from a minimum charter of employment rights...
- Constantine v Imperial Hotels LtdConstantine v Imperial Hotels LtdConstantine v Imperial Hotels Ltd [1944] KB 693 is an English contract law case, concerning the implied duty of an innkeeper to not refuse accommodation to a guest without just cause.-Facts:...
[1944] KB 693 - Disability StandardDisability StandardThe Disability Standard is a benchmarking assessment run by Employers' Forum on Disability.Best described as a management tool for employers, the Disability Standard acts as a statistical study providing us with a snapshot of UK businesses performance on disability in line with the disability...
- Employers' Forum on Disability
- Employment discriminationEmployment discriminationEmployment discrimination is discrimination in hiring, promotion, job assignment, termination, and compensation. It includes various types of harassment....
- Temporary and Agency Workers (Equal Treatment) BillTemporary and Agency Workers (Equal Treatment) BillThe Agency Workers Regulations 2010 are a statutory instrument forming part of UK labour law. They aim to combat discrimination of people who work for employment agencies, by stating that agency workers should be no less favourably treated in pay and working time than their full time counterparts,...
- UK agency worker law
- Free Representation UnitFree Representation UnitThe Free Representation Unit is the largest single provider of pro bono services in the United Kingdom. It was founded in 1972 by several law students at bar school. The aim was that they would provide representation for poor people...
law of other countries
- Anti-discrimination laws in BrazilAnti-discrimination laws in BrazilAnti-discrimination laws in Brazil are present in the Constitution of Brazil, in the Labour law, in the Child and Adolescent law, in the Ageing law, in the Penal Code....
- Employment equity (Canada)Employment equity (Canada)Employment equity, as defined in Canadian law by the Employment Equity Act, requires employers to engage in proactive employment practices to increase the representation of four designated groups: women, people with disabilities, Aboriginal peoples, and visible minorities...
American law
- Employment discrimination law in the United StatesEmployment discrimination law in the United StatesIn the United States, employment discrimination is prohibited by a collection of state and federal laws, as well as by ordinances of counties and municipalities. Only discrimination based on certain characteristics is illegal....
- Equal Pay Act of 1963Equal Pay Act of 1963The Equal Pay Act of 1963 is a United States federal law amending the Fair Labor Standards Act, aimed at abolishing wage disparity based on sex . It was signed into law on June 10, 1963 by John F. Kennedy as part of his New Frontier Program...
- Civil Rights Act of 1964Civil Rights Act of 1964The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
, dealing with race, colour, religion, sex and national origin - Age Discrimination in Employment ActAge Discrimination in Employment ActThe Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202Code, through , forbids employment discrimination against anyone at least 40 years of age in the United States .-Scope of Protection:...
of 1967 - Immigration Reform and Control Act of 1986, giving limited protection for immigrant status
- Americans with Disabilities Act of 1990
- Family and Medical Leave Act of 1993, protecting rights to leave in the event of pregnancy
- Employment Non-Discrimination ActEmployment Non-Discrimination ActThe Employment Non-Discrimination Act is a proposed bill in the United States Congress that would prohibit discrimination against employees on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees.ENDA has been introduced in every...
, proposed legislation to outlaw orientation and gender identity discrimination.
External links
- Equality Act 2010
- Equality and Human Rights Commission http://www.equalityhumanrights.com/
Trade Unions
Non-permanent workers
- Part-time Worker Directive 97/81/EC
- Fixed-term Work Directive 99/70/EC
- Agency Workers DirectiveAgency Workers DirectiveThe EU Temporary and Agency Workers Directive is an EU Directive agreed in November 2008 which seeks to guarantee those working through employment agencies equal pay and conditions with employees in the same business who do the same work...
2008/56/EC - Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000The Part-time Workers Regulations 2000 is a UK labour law measure which requires that employers give people on part time contracts equal pay to people on full time contracts who do the same jobs. It implements EU Directive 97/81/EC, and forms part of the European Unions programme to combat...
, SI 2000/1551 - Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002Fixed Term Employees Regulations 2002 form a UK statutory instrument aimed to protect employees who have fixed term contracts...
, SI 2002/2034 - Agency Work Regulations 2010, text here
Protected characteristics
- Treaty of the European Community, whose Article 141 address equal pay between men and women. Article 13, introduced by the Treaty of Amsterdam in 1996, is the basis for
- Framework Directive 2000/78/EC
- Race Equality Directive 2000/43/EC
- Equal Treatment Directive 2006/54/EC, replacing 97/80/EC, 76/207/EEC and 2002/73/EC
Other websites
- Support for employers - Employers' Forum on Disability
- Disability Standard Benchmark for Employers
- Agediscrimination.info - for age discrimination statistics and information aimed at employers, employees, researchers, students, journalists and others interested in age discrimination issues in the UK.