Discrimination




“Discrimination”, in the sense used in the Equality Act 2010, means, put simply, treating people differently because of a personal characteristic such as religion, race, sex, etc.

Areas of life covered by the prohibition on Discrimination

The law covering discrimination does not apply in private life – everyone is free to, for example, choose their friends on whatever basis they wish including religion, race, sex etc. The law applies in two main areas: (1) employment, and (2) the provision of goods and services, although there are specific provisions for premises, education, and associations which might not otherwise fit under the description of “goods and services”.

Employment  

Employers are not allowed to discriminate against employees or job applicants. There is no prohibition on discrimination the other way around – i.e. nothing to prevent a job seeker from taking the religion, race, sex etc. of the potential employer into account when deciding who to apply for a job with.

Provision of goods and services

A provider of goods and services is not permitted to discriminate against customers. There is no prohibition on discrimination the other way round – i.e. nothing to prevent a customer choosing not to patronise a shop because of the religion, race, sex etc. of the shop owner.  

Personal Characteristics covered

The law prohibits discrimination on the grounds of:


If someone is discriminated against on the basis of some other personal characteristic (e.g. being fat) then generally they are not protected by discrimination law. However  sometimes someone discriminated against for some other reason may have a remedy on the basis of what is known as “indirect discrimination” where discrimination disproportionately affects one group. For example, discriminating against employees who have caring responsibilities for children is not covered per se but it could be covered as indirect discrimination if it affects a greater proportion of women than men.  

Types of Discrimination


Direct Discrimination

Direct discrimination is treating someone less favourably because of a protected characteristic. Within the employment context, direct discrimination is allowed where being of a particular religion, race, sex etc. is an occupational requirement. For example a hospital appointing a Catholic chaplain obviously can require applicants to be Catholic priests. But for the vast majority of jobs there is no justifiable reason for the employee to be of a particular religion, race, sex etc.

Indirect Discrimination    

Indirect discrimination is where a employer, or a provider of goods and services, applies a “provision, criterion, or practice” which is applied equally to persons irrespective of religion, race, sex etc. but which puts a particular group at a disadvantage.
For example, if an employer were to require all employees not to wear anything on their head, that would be a “provision, criterion, or practice” which applies to all employees irrespective of religion, race, sex etc. but which is to the disadvantage of, for example, Orthodox Jewish employees (the male members of which religion would wish to wear a skull cap) Sikh employees (the male members of which religion would wish to wear a turban) as well as Moslems (the female members of which religion would wish to dress modestly which, for a certain proportion, might include a desire to cover the head to some extent). 

Indirect discrimination is not illegal if the employer or provider of services can demonstrate that it is “a proportionate means of achieving a legitimate aim”. For example if an employer required employees working in hazardous conditions to wear hard hats for reasons of safety, they would in principle be able to justify that “provision, criterion, or practice” even if it unavoidably interfered with the desire of some employees, for religious reasons, to wear other head coverings. If a claim were to be brought, the court or tribunal would decide whether the requirement was a “a proportionate means of achieving a legitimate aim” by considering all the circumstances including, in this case, the degree of risk of injury, the extent to which wearing hard hats reduces that risk, what alternatives were feasible, to what extent an employee permitted to choose whether to wear a hard hat would be taking a risk only with his own safety or to what extent the safety of others might also be put at risk, etc.

(Note: there are special rules allowing Sikhs to not wear hard hats on construction sites if they are wearing a turban: the above discussion is about the general position apart from that special rule.) 

One requirement for a claim of indirect discrimination to succeed is that both the claimant himself, and the group of which he is a part, should be disadvantaged. So an Atheist making a personal choice, unconnected to religion or belief, to wear a headscarf or hat, could not make an indirect discrimination claim if prevented from doing so, since Atheists as a group are not disadvantaged.    

Discrimination arising from a protected characteristic

The concept of “indirect discrimination” is carried further in the case of disability. It is discrimination to treat a disabled person unfavourably because of “something arising in consequence” of that person’s disability. So an employee undergoing chemotherapy for cancer, who wished to wear a head covering to conceal hair loss, could bring a claim if prevented by an employer (or service provider) from doing so. The key difference between this, and indirect discrimination, is that the disabled person does not have to show that there is a provision, criterion, or practice affecting disabled people, or cancer sufferers, in general. It is enough that they alone are affected because of their own particular circumstances. The employer can still escape liability if it can show that the unfavourable treatment was a “proportionate means of achieving a legitimate aim”.

There is a similar provision in the case of pregnancy/maternity. A woman treated unfavourably because of pregnancy or because of an illness suffered by her as a result of it, does not have to show that the unfavourable treatment affects pregnant women generally. It is sufficient that she suffered the illness as a result of the pregnancy and was unfavourably treated as a result.

Duty to make adjustments   

 
In the case of disability, there is a positive duty to make reasonable adjustments so as to compensate for the disadvantage caused by the disability. Depending on the circumstances, a reasonable adjustment could be an adjustment to the employer’s (or service provider’s) procedures such as disregarding disability related absence from work when deciding whether the amount of sickness absence should trigger an attendance management procedure. Or an adjustment may be the provision of wheelchair access, or a certain type of seat or working surface. An adjustment could include amending the employee’s duties so that those which they find difficulty with, because of their disability, are transferred to others. The key word here is “reasonable”. An employer, particularly a small employer, is not expected to spend huge sums of money on adjustments which will produce only a marginal benefit. But adjustments which are simple, inexpensive, and provide great benefit, should be made. Between these two extremes it would be for the tribunal or court to decide exactly where to draw the line between what is reasonable and what is not.

There are some similar provisions with regard to pregnancy and maternity though these are found in other legislation and are more specific - such as altering working conditions so as to avoid any risk to the health of the pregnant woman or her baby, providing paid time off when attending ante-natal appointments, and providing maternity leave/pay and a right to return to work – than the general duty to make adjustments in the case of disability.

Disclaimer

The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but Contact me for advice   

This page was lasted updated in August 2016          Disclaimer