Introduction
In the United Kingdom, the law provides significant protection against unlawful discrimination in the workplace and in the provision of services. For businesses, understanding these laws is essential not only for legal compliance but also for promoting a fair and inclusive environment. The primary legal framework governing discrimination in England and Wales is the Equality Act 2010. This Act consolidated and simplified numerous previous pieces of legislation into a single statute. This discussion will outline the key provisions of the Equality Act 2010, focusing on the concepts of protected characteristics, direct discrimination, and indirect discrimination, with reference to relevant case law.
The Equality Act 2010 and Protected Characteristics
The Equality Act 2010 (‘the Act’) provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. Central to the Act is the concept of ‘protected characteristics’. Section 4 of the Act lists the nine protected characteristics, which are the grounds upon which discrimination is unlawful. These are:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Race
- Religion or belief
- Sex
- Sexual orientation
- Pregnancy and maternity
An employer, or any other body to whom the Act applies, is prohibited from discriminating against an individual because of one or more of these characteristics. This protection applies throughout the employment relationship, from recruitment and selection to terms and conditions, promotion, and dismissal.
Direct Discrimination
The most straightforward form of discrimination is direct discrimination, which is defined in section 13 of the Act. This occurs when a person (A) treats another (B) less favourably than they treat or would treat others, because of a protected characteristic. There is no need for the claimant to show that the less favourable treatment was intentional. The key question is whether the protected characteristic was the reason for the treatment.
The classic case of James v Eastleigh Borough Council [1990] 2 AC 751, although decided before the 2010 Act, illustrates the principle clearly. A local council allowed free swimming pool entry for people of state pensionable age. At the time, this was 65 for men and 60 for women. A 61-year-old man was charged for entry while a 61-year-old woman was not. The House of Lords held this was direct sex discrimination. The council’s motive was not to discriminate, but the ‘but for’ test was applied: but for the claimant’s sex, he would have been treated the same as a woman of the same age. This shows that motive is irrelevant; the focus is on the reason for the treatment.
Indirect Discrimination
Indirect discrimination, defined in section 19 of the Act, is a more complex concept. It occurs when an organisation has a policy, rule, or practice – referred to as a provision, criterion or practice (PCP) – which applies to everyone in the same way, but has the effect of putting people who share a protected characteristic at a particular disadvantage.
For a claim of indirect discrimination to succeed, the individual must show that the PCP puts them at that disadvantage personally. However, unlike direct discrimination, indirect discrimination can be justified. An employer has a defence if they can show that the PCP is a ‘proportionate means of achieving a legitimate aim’. This means the employer must demonstrate that their aim is valid and that the discriminatory effect of the policy is outweighed by the importance of that aim, with no less discriminatory way of achieving it. For example, in Essop and others v Home Office (UK Border Agency) [2017] UKSC 27, a skills assessment for promotion was found to have a worse outcome for older and Black and Minority Ethnic (BME) candidates. The Supreme Court confirmed that a claimant does not need to show why the PCP caused the disadvantage, only that it did cause a disadvantage to the group.
Conclusion
The Equality Act 2010 provides a comprehensive legal framework against discrimination in the UK. It identifies nine protected characteristics and prohibits various forms of unlawful treatment, including direct and indirect discrimination. Direct discrimination involves treating someone less favourably because of a protected characteristic, as seen in cases like James v Eastleigh. Indirect discrimination involves a seemingly neutral policy that disadvantages a particular group, which can only be lawful if it is a proportionate means of achieving a legitimate aim. For businesses, a thorough understanding of these principles is crucial for managing legal risk and creating a workplace that values fairness and equality for all employees.
References
Advisory, Conciliation and Arbitration Service (ACAS). (2023) Discrimination, bullying and harassment. Available at: https://www.acas.org.uk/discrimination-bullying-and-harassment
British Airways Plc v Starmer [2005] IRLR 862
Essop and others v Home Office (UK Border Agency) [2017] UKSC 27
Equality Act 2010 (c. 15)
James v Eastleigh Borough Council [1990] 2 AC 751
