Equality and Freedom from Discrimination

Objectives
To explore ways in which the law respects and attempts to defend individual freedoms by offering protection against the different forms of

discrimination that exist in society.

1. Examine the historic legal position in relation to discrimination;
2. Consider the need for reform of the law relating to discrimination.
3. Consider the protection offered by the law which is now incorporated into the Equality Act 2010.

4. Examine the protection offered by the law in terms of

• WHICH GROUPS IN SOCIETY are protected from discrimination,
and
• IN WHAT SITUATIONS people are protected from discrimination

5. Explore the DIFFERENT TYPES of discrimination that exist.
• Direct Discrimination;
• Indirect Discrimination;
• Harassment;
• Victimisation

6. Consider tackling discrimination through positive action.

Exam Skills

• Describe/Explain the law in relation to discrimination.
• Evaluate the law in relation to discrimination.

Introduction

Explain what discrimination means.

Give an example of discrimination taking place in society. Think about what types of discrimination exist in society.

The Historical Legal Position in the UK

Common Law and Discrimination

At common law, there were no restrictions against discrimination.

What did this mean?

The need for protection from discrimination stems from the basic freedom of law, that a person may do anything not prohibited by the law. So

whilst the law itself did not discriminate, by not specifically preventing discrimination on any ground, it allowed people in society to

discriminate at will.

Statute Law and Discrimination

In the 1960s it was recognised that there was a growing need to use the law to prevent certain forms of discrimination. Initially the law

focused on preventing race and sex discrimination.

Why were race and sex discrimination chosen as the first types of discrimination to be outlawed?

How did the law help prevent race and sex discrimination?

However, more recently the law has begun to respond to other forms of discrimination (partly due to increased pressure from the European Union).

The law now prevents against other types of discrimination such as disability, sexual orientation and trans-gender discrimination, religious

discrimination and age discrimination.

Act
Race Relations Acts 1965, 1968, 1975, Race Relations (Amendment) Act 2000

Equal Pay Act 1970

Sex Discrimination Act 1975

Disability Discrimination Acts 1995, 2004

Employment Equality (Religion or Belief) Regulations 2003

Explain how statutory protection is an improvement on the common law position?
________________________________________________________________________________________________________________________________________________

_______________________________________________________________
______________________________________________________________________________________________________________________________________

There were a number of other anti-discrimination laws in addition to those listed above such as the Employment Equality (Sexual Orientation)

Regulations, the Equality Act 2006, the Sexual Orientation (Goods and Services) Regulations and the Employment Equality (Age) Regulations 2006.

In 2009, the Labour Government announced that the law on discrimination had grown to a point where it was confusing and difficult to understand.

There were 9 major statutes outlawing discrimination, around 100 statutory instruments [S.I.s] and over 2,500 pages of statutory guidance.

[Rule of Law – clear and accessible?]

In the Equality Bill 2009, the government proposed a new law which would streamline the existing law on discrimination and which would place all

the discrimination protection in one statute. The Equality Bill 2009 passed through parliament and became the Equality Act in April 2010. The

Act came into force in October 2010.

The Equality Act 2010
The main provisions of the Equality Act 2010 are as follows:

• To replace the large number of Acts with one single Act governing discrimination.
• To simplify the law on discrimination.
• Place a new equality duty on public bodies
• To ban age discrimination outside the workplace
• Deal with the problem of unequal pay
• Protect carers from discrimination
• To protect breastfeeding mothers from discrimination
• Strengthen protection for disabled people.

Issue 1: Protected characteristics: WHO needs to be protected by the law?
The law has responded to discrimination in society and is designed to protect vulnerable groups. However, you need to fall within one of these

vulnerable groups to claim protection.

The Equality Act lists 9 special characteristics that the law will protect and defines these as PROTECTED CHARACTERISTICS. Some of these

characteristics were protected before the Equality Act, others were not. The table should make it clear.

Protected Characteristic Protected BEFORE the Equality Act?
Age

Yes – but the protection for age discrimination will eventually extend to situations outside employment.
Disability

Yes – but the protection has been improved to include carers of disabled people.
Gender Re-assignment

Yes – but this was included in sex discrimination.
Race

Yes – but increased protection now in place.
Religion or Belief
Yes, since 2003.
Sex

Yes but increased protection which also includes specifically breastfeeding mothers.
Sexual Orientation
Yes but increased protection.
Marriage and Civil Partnership

Yes but previously under the ground of sex discrimination. Is now a ground in its own right and has increased protection
Pregnancy and Maternity

Was covered under sex discrimination but is now a ground in its own right.

The law protects these characteristics but what do they actually mean? To work this out we need to look at definitions provided in statute.

Case law has provided further definition in some instances.

A positive feature of discrimination law is that it is willing to protect a range of vulnerable people from discrimination through wide

definitions within the statute and wide interpretations within the court room.

• Discrimination on the grounds of RACE
The law offers protection to those discriminated on the grounds of their Race. However, before you can claim the protection of the law, you

must first establish that you belong to a recognised race. This is not always a straightforward issue.

Race Relations Act 1976 Equality Act 2010
s.3 defined race as meaning : ‘colour, nationality, ethnic and national origins’ s.9 states race includes ‘colour, nationality, ethnic or

national origins.’

The inclusion of the phrase ‘ethnic origin’ widens the meaning of racial group and has allowed religious groups to be included even though

religion was not part of the remit of this Act.

Mandla v Dowell Lee 1983
The House of Lords had to consider whether Sikhs were a racial group. They held that an ethnic group is a group which has a long shared history

and a cultural tradition of its own, often, but not necessarily, associated with religious observances. Therefore, Sikhs were a racial group.

However, this does not mean all religious groups will be included. Asians are a recognised Race whereas Muslims are not a recognised race but a

religion.

To be classed as a RACE, there appear to be two elements that must be proved:
1. a long shared history of which the group were conscious; AND
2. a cultural tradition of its own including family and social customs.

Other factors that could also be taken into account but were not essential include:
• a common geographical origin;
• a common language; literature and religion
(Dawkins v Department of Environment 1993)

In CRE v Dutton 1989 it was decided that gypsies could be termed a racial group because they had a shared history going back 700 years.

However, in Dawkins v Department of Environment 1993, Rastafarians, although they exhibited a cultural tradition of their own e.g. music taste

and distinctive hair, they did not have a long shared history. Their history only dated back about 60 years.

Does the law adequately protect you from discrimination on the grounds of RACE? Think about whether the protection has been improved because of

the Equality Act 2010.
________________________________________________________________________________________________________________________________________________

_______________________________________________________________

• Discrimination on the grounds of DISABILITY
In order to claim disability discrimination you must be suffering a recognised disability (in the same way as you must be part of a ‘racial

group.’).

Disability Discrimination Act 2004 Equality Act 2010
s. 1 states a disability is ‘a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out

normal day to day activities.’
s.6 states a person has a disability if
a) they have a physical or mental impairment, AND
b) the impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities.

The Employment Appeal Tribunal (EAT) had the opportunity to consider the meaning of ‘disability’ in Goodwin v The Patent Office (1998).

1. The impairment condition
Deciding whether there is an actual impairment is quite straightforward where that impairment is a physical one. However, there used to be a

doubt about whether the impairment condition is fulfilled in an alleged mental illness case. Tribunals used to have to check whether the

condition was referred to in the WHO International Classification of Diseases. If it wasn’t then impairment could not be claimed. However,

this is no longer the case following the Equality Act 2010 which broadens the definition to recognise mental impairment not within the WHO

classification e.g. stresses and anxiety.

2. The adverse effect condition
The EAT warned that disabled persons often ‘play down’ the effect that their disabilities have on their daily lives. Thus, if asked whether they

were able to cope at home the answer might well be ‘yes’ even though, on proper analysis, many of the ordinary day to day tasks were done with

great difficulty due to an impaired ability to carry them out.

3. The substantial condition.
Minor impairments should be considered together in determining whether they had a substantial adverse effect on the person’s ability to carry

out day to day activities. A progressive condition which has begun to have an effect on the person’s health is deemed to have a substantial

effect if it is likely to have such an effect in the future.

4. The long term effect condition
An adverse effect is long term if it has or will last longer than twelve months, or for the rest of the person’s life. Schedule 1 states that a

‘long term effect’ is one which has lasted, or is likely to last, twelve months or more.

Example
You suffer from depression so it is very hard for you to make decisions or even to get up in the morning. You’re forgetful and you cannot plan

ahead. Together these factors make it difficult for you to carry out day to day activities. You’ve had several periods of depression over the

last 2 years and the effects of the depression are long term. So for the purposes of the Equality Act you’re defined as a disabled person.

Before the Equality Act you might not have been able to get disability discrimination protection.

Employers are also no longer allowed to ask questions about your health or disability before they offer you a job i.e. at interview. They can

only do this if they have a good reason for doing so… e.g. health and safety, you apply for a job as a tightrope walker but you are blind.

• Discrimination on the Grounds of RELIGION

Employment Equality (Religion or Belief) Regulations 2003 Equality Act 2010
Defines religion or belief as
‘Any religion, religious belief or similar philosophical belief. This does not include any philosophical or political belief unless it is

similar to religious belief. It is for the Employment Tribunals and other Courts to decide whether particular circumstances are covered by the

regulations.’ s.10 states ‘religion means any religion or lack of religion.’
‘Belief means any religious or philopophical belief and also a lack of belief.’

This is a relatively recent addition to the law of discrimination. Why has religion not always been protected?
________________________________________________________________________________________________________________________________________________

_______________________________________________________________
_____________________________________________________________________
• Discrimination on the grounds of PREGNANCY or MATERNITY.

Sex Discrimination Act 1975 Equality Act 2010
No definition in law – was included as part of the protection afforded to women under sex discrimination. A woman is protected against

discrimination on the grounds of pregnancy during the period of her pregnancy and on the grounds of maternity during any statutory maternity

leave to which she is entitled. Pregnancy is the condition of being pregnant. Maternity is the period 26 weeks after the birth.

• Discrimination on the grounds of SEX.

Sex Discrimination Act 1975 Equality Act 2010
Discrimination on the grounds of sex is discrimination because one is a man or a woman. s.11 ‘a reference to a person who has a particular

protected characteristic is a reference to a man or a woman.

Issue 2: WHEN will the law protect you?
There are a variety of discrimination laws but they only offer protection in defined situations. If the discrimination occurs outside these

situations then you cannot bring an action. A number of characteristics were only protected in narrow circumstances such as employment … but

the Equality Act has improved protection for most grounds.

Religion or belief regulations provided the weakest protection which was only available in terms of employment and vocational training. Age

discrimination is only outlawed in employment.

The new Equality Act has attempted to extend protection for all characteristics. The law provides the vulnerable protection in a variety of

situations although some aspects are still limited.

Broadest Protection Protected Characteristic Where protected previously?
1. Race • Employment
• Education
• Housing
• Premises
• Public functions
• Provision of goods and services
• Clubs
2. Disability • Employment;
• Education;
• Transport;
• Provisions of Goods and Services.
• Public functions
• Housing
• Clubs
3. Sex • Employment
• Education
• Provisions of Goods and Services
• Public functions
• Clubs
4. Maternity/pregnancy • Employment
• Education
• Provisions of Goods and Services and public functions
• premises
• Clubs
4. Religion/belief • Employment and vocational training
• Premises
• Education
• Provision of Goods, Facilities and Services and public functions
• Clubs
5. Sexual orientation • Employment and vocational training
• Education
• Provision of Goods and Services and public functions
• Clubs
5. Gender re-assignment • Employment and vocational training
• Education
• Public function
• Clubs
6. Marriage and civil partnership • Employment
• Vocational training
• clubs
7. Age • Employment
• Vocational training
• Protection outside the workplace on the grounds of age is likely to come into force in 2012.

In Farah v Commissioner of Police of the Metropolis (1996) ‘services’ included those provided by the police. Farah was a seventeen year old girl

who was a refugee from Somali. A group of white teenagers attacked her and her ten year old cousin and let loose a dog on her causing her

injury. She telephoned the police but when they arrived, they made no attempt to arrest her attackers; instead she was arrested and charged with

affray, assault and causing unnecessary suffering to a dog. At her trial she was acquitted when the prosecution offered no evidence. She

subsequently brought an action for damages and the Court of Appeal made it clear that a police officer fell within S.20 of the Race Relations

Act 1976.

The government said..
“This is an important opportunity to make the law more consistent across different groups. Every group should receive the same protection in

every area of activity unless there is a very good reason to leave them out. This will make it much easier for everyone; employers, service

providers and individuals to understand and to apply the law.”

Issue 3: Different TYPES of Discrimination

The law has also developed protection from different types of discrimination. This has enabled protection to go beyond the obvious e.g. ‘you

can not have this job because you are a woman’ to more indirect and subtle forms. There are 4 main types of discrimination, from which have

developed other sub-types. The Equality Act 2010 has now consolidated and recognised in statute all the different types of discrimination.

• Direct Discrimination

s. 13 Equality Act 2010 states

All protected characteristics include protection from DIRECT Discrimination. This is the most obvious and blatant form of discrimination. The

law prevents you from being treated differently because of the protected characteristic.

It has been known as the ‘but for….’ test. For example, but for the person’s race they would have been provided with the service or but for

their disability they would have received the promotion.

There is a 3 stage approach to proving direct discrimination has taken place:

The Equality Act provides that direct discrimination on the grounds of sex now applies explicitly to breastfeeding mothers.

The law now says that discrimination on the grounds of pregnancy and maternity no longer requires a comparator because it is impossible to find

an appropriate one. The Equality Act stregthens this position and provides that direct discrimination on the gorunds of pregnancy and maternity

is authomatically unlawful.

Exceptions to direct discrimination

• Objectively justified – on the grounds of age only.

• Occupational requirements
If you can show that a particular protected characteristsic is central to a particular job, you can insist that only someone who has that

particular protected characteristic is suitable for the job. This is an occupational requirement.

On the whole, the current discrimination laws demonstrate a robust method of preventing direct discrimination which is not easy to avoid and

appears to have rectified some earlier deficiencies. This can be seen through the extension of protection in relation to pregnancy and the

extension of direct discrimination to areas beyond race and sex e.g. transgender, sexual orientation, religion, age and disability to now

include breastfeeding mothers.

Associative Discrimination
This is a part of direct discrimination which has been more formally recognised in the Equality Act 2010. This is defined as direct

discrimination against someone because they associate with another person who possesses a protected characteristic. This type of discrimination

has previously applied to race, religion and sexual orientation in case law but has now been extended to cover age, disability, gender re-

assignment and sex under the Equality Act 2010.

The government has widely publicised this improvement to the law because it now means that carers of disabled people are protected. Remember,

carers do not possess the protected characteristic themselves, i.e. they are not disabled .. but can find themselves discriminated against

because of their association, their having to care for a disabled person.

Perceptive discrimination
This is another type of direct discrimination which has been formally recognised by the Equality Act 2010. This is direct discrimination

against someone because others THINK that the person possesses a particular protected characteristic. It applies even if the person does not

possess that characteristic i.e. has been discriminated against by mistake. This type of discrimination has previously applied to age, race,

religion and sexual orientation in case law but has now been extended to cover disability, gender reassignment and sex under the Equality Act

2010.

• Indirect Discrimination

s.19 Equality Act 2010 states

All the protected characteristics are covered by the concept of indirect discrimination. This is an improved situation as the Equality Act 2010

has brought the protection for disability in line with all other forms and it now includes protection for indirect discrimination.

This form of discrimination can help tackle ‘institutional discrimination.
What is institutional discrimination?
________________________________________________________________________________________________________________________________________________

____________________________________________________________________________________________________________________________________

Indirect discrimination can be less easy to spot. It occurs where a provision, criterion or practice is imposed which impacts unfairly on people

with certain protected characteristics and is not justifiable. It must be shown that the policy/practice/procedure has detrimental effect on

those.

Mandla v Dowell Lee (1983).
The case concerned the application of a Sikh schoolboy to a school which forbade the wearing of any kind of headgear. The Sikh religion requires

that men wear turbans, and so the boy’s father alleged that the school rule indirectly discriminated against Sikhs. The school did not say it

would not accept Sikh pupils (which would have been direct discrimination) but by enforcing a rule with which Sikhs could not comply and other

people could, it treated Sikhs differently on the basis of their race alone.
The House of Lords upheld this argument. This was indirect discrimination.

British National Party

Indirect discrimination can tackle institutional discrimination and prevent practices that would disadvantage the vulnerable which are less

obvious to spot. However, it is difficult to prove and can be justified. Stephen Lawrence case is relevant – make links with MacPherson

Report findings.

• Harassment

s.26 Equality Act states that

This also includes sexual harassment – s.26.

Harassment, as a form of discrimination does not apply to marriage and civil partnership or pregnancy and maternity.

The new definition, in many ways, reflects the existing case law. So, unlawful harassment can occur even if the harasser has no idea that the

conduct in question is having the effect of violating dignity or creating an intimidating environment.

In assessing whether or not behaviour is unlawful tribunals should take an objective view of what does and does not violate dignity or create an

intimidating environment. In assessing this they must take into account the subjective perception of the victim as one of the most important

factors.

In Jenkins v Legoland Windsor Park 2002 the employer subjected the employee to detriment by presenting model in Lego of himself illustrating his

disability (loss of a leg) whereas the others were given models of themselves depicting a feature of their work.

Organisations may be held responsible for the actions of their staff as well as the staff being individually responsible for their own actions.

If harassment takes place in the workplace or at a time and/or place associated with the workplace, for example a work related social gathering,

the organisation may be liable and may be ordered to pay compensation unless it can show that it took reasonable steps to prevent harassment.

Individuals who harass may also be ordered to pay compensation.

Employers can now be held liable for employees who find certain behaviour offensive even if it is not directed at them. So the person need not

possess the relevant CHARACTERISTC THEMSELVES BUT NEVERTHELESS CAN ARGUE THEY FEEL HARASSED BY SOMEONE ELSE’S TREATMENT.

Also protected from harassment by association and perception. See direct discrimination above.

In these ways, the Equality Act has strengthened the protection against harassment.

• Victimisation

s. 27 Equality Act states

What is a ‘protected act’?
________________________________________________________________________________________________________________________________________________

_______________________________________________________________

What then is protection against victimisation?
________________________________________________________________________________________________________________________________________________

_____________________________________________________________

The discrimination laws prevent the employer from treating an employee less favourably for taking action or aiding in an action under the Act.

This is very important because the law relied on the victims bringing the case, highlighting the problem that will then lead to change. Without

a claim the culture will not change.

In Aziz v Trinity St Taxis 1988 the claimant, a taxi driver and member of Trinity St Taxis (TST) thought he was being treated unfairly and made

a recording of a conversation to prove it. He took his case to an industrial tribunal but his race discrimination case failed. He was then

expelled from TST and claimed victimisation. The question was whether he was expelled due to the race discrimination claim or for the breach of

trust in making the tapes? It was held that the claimant could not prove the necessary causal link.

Why is it important that victimisation is recognised?
________________________________________________________________________________________________________________________________________________

____________________________________________________________________________________________________________________________________

Combating Discrimination through positive action

Positive action is enshrined in statute for the first time in the Equality Act 2010. Explain what it is.

________________________________________________________________________________________________________________________________________________

____________________________________________________________________________________________________________________________________

What is your opinion on positive action? Does it help to deal with discrimination?
________________________________________________________________________________________________________________________________________________

_______________________________________________________________

The Equal Pay Act 1970

In Britain in 1970 women only earned 63% of the average male wage. The Equal Pay Act 1970 tried to redress the balance, stating that women are

to have the same pay and conditions of employment as men where they are doing the same work (a man who believes he is paid less than a woman

doing like work has the same rights, but in practice the victim of unequal and lower pay is usually a woman).

The Equality Act 2010 and Equal Pay
The Labour government believed that the Equal Pay Act had been ineffective – women still earn on average 22.6% less than men doing the same job

or 85pence for every £1 earned by a man. They propose to improve this situation with the new Equality Act which will require employers to

reveal the pay differences amongst their staff in annual reports and which will prevent employers taking disciplinary action against staff who

discuss pay differences amongst themselves. When the reports are published, the government will monitor the situation and call employers to

account for the differences.

Even though much of the Equality Act came into force in October 2010, this part is was considered by Parliament much later. On 2nd September

2010, the Code of Practice for Equal Pay was laid before Parliament. This is the first step in bringing into force the equal pay aspect of the

Equality Act, however, the coalition announced in November 2010 that it would not enforce the equal pay audit of employers.

Coalition Government and the Equality Act 2010
Perhaps the most innovative part of the Equality Act was the first provision which enacted a new socio-economic duty. It require public

authorities, “when making decisions of a strategic nature about how to exercise their functions, to have due regard to the desirability of

exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.”

This provision became referred to as a ‘class’ duty and it represented a recognition of the link between poverty and disadvantage and the

protected characteristics such as race and religion. However, the coalition government announced in November 2011 that they would not bring

this provision into force.

Teresa May dismissed the legislation as “ridiculous” and said it would not be enacted. “They thought they could make people’s lives better by

simply passing a law saying that they should be made better,” she said.

http://www.guardian.co.uk/society/2010/nov/17/theresa-may-scraps-legal-requirement-inequality

The Home Secretary also rejected the language of equality claiming that the coalition’s focus would be on fairness rather than equality, as the

latter has become a “dirty word … associated with the worst forms of pointless political correctness and social engineering”.

In a brief question-and-answer session after her speech, May admitted: “I recognise that fairness is a word that many people will feel is not as

specific as equality.” Does less specific mean harder to argue in court in this case?

http://www.guardian.co.uk/commentisfree/2010/nov/17/theresa-may-scraps-equality-for-fairness?intcmp=239

The government has also rejected the protection against dual discrimination.

WE ACCEPT