An Essential Guide on Discrimination Law

Transcription

An Essential Guide on
Discrimination Law
By David Malamatenios,
Employment Partner
2014
forward thinking • straight talking
I.
UK Discrimination Law ............................................................................................................ 2
II.
Age Discrimination .................................................................................................................. 4
Objective Justification..................................................................................................................... 7
III. Disability Discrimination ......................................................................................................... 8
Discrimination arising from disability ............................................................................................. 9
IV. Race Discrimination .............................................................................................................. 11
Indirect Discrimination .................................................................................................................. 13
V.
Sex Discrimination ................................................................................................................ 14
VI. Sexual Orientation Discrimination ......................................................................................... 18
VII. Gender Re-assignment discrimination ................................................................................... 20
VIII. Religion or Belief Discrimination ........................................................................................... 22
IX.
Discrimination on the basis of marriage or civil partnership .................................................. 24
© Copyright Colman Coyle Solicitors. 80 Upper Street, London N1 0NU.
[email protected] www.colmancoyle.com
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I.
UK Discrimination Law
The implications of UK Discrimination Law have been seen most widely in the employment field. In fact,
discrimination has assumed a massive prominence in employment law since the Race Relations Act
came in to force in 1965. The number of characteristics protected from discrimination has regrown,
often as a consequence of European Directives.
UK Discrimination Law is now comprehensively set out in the Equality Act 2010, which is designed to
ensure equality of opportunity at work, to protect employee’s dignity and to ensure that complaints can
be raised without fear of reprisal.
When considering UK Discrimination Law HR Practitioners should keep the following 3 factors in mind:
1) It is often not possible to appreciate an employee’s rights in a given area without considering
whether or not there are discrimination law implications. For instance, a decision to dismiss an
employee on the basis of medical incapacity may also have discrimination law implications (if
the medical incapacity can be characterised as a disability under the Equality Act).
2) High compensation payments and expensive litigation - there is no limit to the amount of
financial loss that can be awarded in a successful case and discrimination claims are often
complex, expensive and incur significant management time, which are usually not recoverable.
3) Allegations of discrimination can attract coverage from the press and create bad publicity for an
employer. They can also significantly damage staff morale. Discrimination and harassment
issues are usually highly emotional and controversial.
The Equality Act aimed to harmonise discrimination law but has in fact made it more complicated. The
Act is a vast statute extending to 218 sections and 28 schedules.
Before starting it would be useful to recount the types of discrimination that are prohibited.
The Equality Act covers certain “protected characteristics”. An employer must not discriminate on the
basis of:

Sex

Race

Age

Disability

Sexual orientation

Gender re-assignment

Being married or in a civil partnership

Religious or philosophical belief
It must also be understood that unlawful discrimination can be direct or indirect. Direct discrimination is
where an employer directly discriminates against an employee if he treats the employee less favourably
than he would treat another person in the same or similar circumstances (the “comparator”) and does
so because of one of the above protected characteristics. So, if for instance an employer directly refuses
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to promote an employee because of their sexual orientation, this would be a case of direct
discrimination.
Indirect discrimination is a more subtle concept. An employer indirectly discriminates against an
employee if it applies an apparently neutral provision, criterion or practice (“PCP”) that puts the
employees protected group at a disadvantage compared to other groups. So if for instance an employer
has a policy that to be eligible for promotion an employee must work full time, this could be said to
indirectly discriminate against female employees who have to work flexible hours due to child care
commitments. There is a defence to indirect discrimination if the employer can show that the PCP is
objectively justified. To be justified, the PCP must correspond to a legitimate business aim and be an
appropriate and reasonably necessary way of meeting that aim.
There are some practical steps that can be taken to reduce the risk of breaching discrimination laws:

Provide employment handbooks including policies on equality opportunities and harassment. Be
sure to set out what constitutes acceptable behaviour and what does not.

Provide training on equal opportunities to managers.

Set up clear grievance procedures for staff to raise concerns and complaints.

Review employment contracts, policies and employee share schemes to ensure they comply
with the law.

In the case of disabled employees, consider making reasonable adjustments, which will alleviate
the difficulties suffered by them.

Accommodate workers different cultures and religious beliefs.

Try and accommodate requests for family friendly hours by employees with childcare or family
commitments (unless refusal is justified).

Carry out equal opportunities monitoring.
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II.
Age Discrimination
Age is one of the protected characteristics covered by the Equality Act. A wide range of individuals are
protected, including employees, contract workers, partners and office holders. Age discrimination
applies to all parts of the employment relationship, such as recruitment, terms and conditions of
employment, promotions, transfers, dismissals and training.
Broadly speaking, under the Equality Act, it is unlawful for an employer to:

discriminate directly by treating a job applicant or employee less favourably than others
because of age, without objective justification.

discriminate indirectly by applying a provision, criterion or practice that disadvantages job
applicants or employees of a particular age group without objective justification.

subject a job applicant or employee to harassment related to age.

victimise a job applicant or employee because they have made or intend to make an age
discrimination complaint.
It is also important to note that age discrimination is in fact permitted in certain circumstances:

an employer can provide service related benefits, even if they seem indirectly age
discriminatory. Where the benefits are affected by length of service over 5 years, it must
reasonably appear to the employer that the award of the benefit fulfils a business need if
indirect discrimination liability is to be avoided (for instance the need could be the requirement
of the business to retain long serving and experienced employees).

an employer may make enhanced redundancy payments related to age.

an employer may be able to show that there is an occupational requirement for an employee to
be of a particular age.
It is also possible for an employer to justify direct age discrimination if it can be shown that the alleged
discriminatory act is a “proportionate means of achieving a legitimate aim”.
Age discrimination can be quite a complicated area of discrimination law. The best way to see how it
works is to look at some examples of decided case law.
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The following are case examples of direct age discrimination:
SIGNIFICANT CASES
Wilkinson v Springwell Engineering Limited ET/2507420/07
In this case an employer dismissed a recently recruited employee, aged 18, on the stated grounds
of capability. However, the Employment Tribunal found that the employer had made stereotypical
assumptions about the employee’s ability based on her age that were not in fact borne out by the
evidence of her work. The Tribunal therefore found that the employer had directly discriminated
on grounds of age.
McCoy v James McGregor & Sons Limited, Dixon and Aitken 00237/071T
In this case a Northern Ireland Employment Tribunal criticised the use of the words “youthful
enthusiasm” in a job advert and the employer’s focus on “drive” and “motivation”. The employer had
rejected the Claimant, who was aged 58 and had over 30 years relevant experience, and instead offered
jobs to two significantly less experienced applicants who were 15 years younger than the Claimant. The
Tribunal felt that the use of the words “youthful enthusiasm” when taken in context, was sufficient to
give rise to a case of direct discrimination. Other relevant evidence included the fact that the employer
had challenged the Claimant on his drive and motivation and had scored the applicants at interview in
an ad-hoc, inconsistent and unclear manner.
Woodcock v Cumbria Primary Care Trust [2012] IRLR491
In this case the Court of Appeal upheld an Employment Tribunal’s decision that a redundant Chief
Executive, dismissed without proper consultation so that notice expired before he qualified for
enhanced pension payments, had not suffered unlawful age discrimination because the treatment
was justified. It was found that the Trusts aim had been to give effect to its genuine decision to
terminate Mr Woodcock’s employment by reason of redundancy and that the dismissal of the
employee of such grounds was a legitimate aim. It was also a legitimate part of that aim for the
trust to ensure that in dismissing Mr Woodcock it saved the additional costs that, had it not timed
the dismissal as it did, would likely to have incurred by way of the enhanced pension payment. It
was found that the Trust had kept Mr Woodcock on longer than it needed to have done and that
he had no right, entitlement or expectation of staying long enough to earn the enhanced pension.
In other words, the enhanced pension rights would have been a “windfall”, which the trust could
legitimately seek to prevent without discriminating against Mr Woodcock on the basis of his age.
Sharma & Others v Millbrook Beds Limited ET/3100922/07
In this case, four employees aged over 50 brought direct discrimination claims as a consequence of
the removal of a pay scheme which paid more to employees over the age of 50. The Tribunal found
that the scheme was contractual and that the scheme had not been changed for employees aged
under 50. It was found that the removal of the scheme was direct age discrimination as the effect
of the change was to treat those aged over 50 less favourably. The Tribunal found that the
employer had not justified its actions as being a proportionate means of achieving a legitimate aim
and that there had been no “real and true” consultation with the affected employees.
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The following are also relevant cases relating to indirect age discrimination which demonstrate how this
area of the law operates:
SIGNIFICANT CASES
Rainbow v Milton Keynes Council ET/1200104/07
In this case the Tribunal found that an advertisement stating that a teaching vacancy “would suit
candidates in the first five years of their career” constituted indirect age discrimination. Someone
in Ms Rainbow’s age group (over 60) was likely to have more than 5 years teaching experience and
would therefore be at a disadvantage. The reason why the Council advertised in this way was that
they were looking to appoint a teacher who was less costly than someone with more than 5 years
experience. In the absence of evidence that, as a result of financial pressures, the Council was
compelled to take discriminatory action, a justification defence could not be established.
Nevertheless, and quite helpfully, the Tribunal said that “in age discrimination there is no
automatic bar on economic grounds coming into the equation on justification, certainly where
combined with other reasons”. So it does seem that cost alone cannot amount to an objective
justification but that it can be a significant factor when combine with other factors.
Homer v Chief Constable of West Yorkshire Police [2012] IRLR601
In this case, it was held that a requirement to possess a law degree to move into the band at the
top of an employer’s career structure (in the police) had put Mr Homer as a disadvantage on the
grounds of age. It was rejected by the Supreme Court that it was possible to separate age from the
fact of retirement and held that it was not appropriate to compare Mr Homer to those who would
not be able to complete a degree through leaving work voluntarily so as to prevent them obtaining
a degree.
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Objective Justification
Both direct and indirect age discrimination can potentially be objectively justified. The legislation refers
to indirect discrimination being “objectively justified by a legitimate aim and the means of achieving that
aim are appropriate and necessary”.
The Business and Industries Secretaries Consultation document on the age regulations (Equality and
Diversity – Coming of Age) gave the following examples of legitimate aims which might justify direct or
indirect age discrimination:

Health, welfare and safety

Facilitation of employment planning

Particular training requirements

Encouraging and rewarding loyalty

The need for a reasonable period of employment before retirement

Recruiting of retaining older people
In cases of indirect discrimination, it seems that the legitimate aim must simply amount to a “real
business need”.
Examples of potential legitimate aims from case law include:

Achieving a supportive culture by avoiding the need to confront older under performing
partners and encouraging staff to remain with the firm with a view to advancement (Seldon v
Clarkson Bright and Jakes [2012] IRLR590).

Ensuring a “reasonable flow” of new judicial appointments (Hampton v Lord Chancellor and
Ministry of Justice ET/2300835/07).

Ensuring a spread of skills and experience in workers of all ages (Smith v Straithclyde Fire Board
ET/S/107290/07).

Ensuring the availability of career progression opportunities (Martin & Others v Professional
Game Match Officials ET/2802438/09).

Creating a balanced workforce and promoting the recruitment of younger workers (Fuchs &
Other v Land Hesson C/159/10 [2011] IRLR1043).

Avoiding disputes with older workers over fitness to work (Fuchs).

Reforming a partnership retirement benefit scheme to make it fairer on younger partners and
most sustainable (Bloxham v Freshfields ET/220586/2006).

Attracting a wider audience to horse racing (McCrirrick v Channel 4 Television Corporation and
another ET/220478/2013).
These aims will not necessarily be legitimate in every case. Much will depend on the facts.
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III.
Disability Discrimination
This is one of the most difficult areas of discrimination to deal with and the area which causes particular
difficulties to employers. Disability discrimination is a wide ranging concept and an employer can find
themselves liable without even having full knowledge of the employee’s disability. Disability
discrimination is capable of cutting into many areas of employment law, such as dismissals on the basis
of capability of long term absenteeism.
A wide range of individuals are protected, including employees, contract workers, partners and office
holders. Disability discrimination also applies to all facets of employment, including recruitment, terms
and conditions, promotions, transfers, dismissal and training. Under the Equality Act it is unlawful for an
employer to:

Discriminate directly by treating a job applicant or employee less favourably than others
because of disability.

Discriminate by treating a job applicant or employee unfavourably because of something arising
in consequence of their disability without objective justification.

Discriminate indirectly by applying a provision, criterion or practice that disadvantages job
applicants of employees with a shared disability without objective justification.

Failure to comply with a duty to make reasonable adjustments where a disabled job applicant or
employee is placed at a substantial disadvantage.
An example of direct disability discrimination is found in the case of Tudor v Spen Corner Veterinary
Centre and Another ET/2404211/05. In Tudor an employee was dismissed after she suffered a stroke
and went blind. It was the view of the employer that the employee could not continue in her job. The
Tribunal found that the employer formed this view without meeting with employee or without seeking
medical evidence and that the view of the employer was based on “stereotypical assumptions” about
the nature of the employee’s disability. The Tribunal decided that the employer would not have made
those stereotypical assumptions in respect of a comparator who was absent for a similar period for a
different reason (such as having a broken leg). On this basis the Employment Tribunal found that the
employer had directly discriminated against the employee.
For direct disability discrimination to occur (as in the Tudor case above) the less favourable treatment
must be directly “because of” the disability. In other words, the reason must be the disability itself, not
merely something related to the disability (although this would be covered by discrimination arising
from a disability). For instance, the withdrawal of a job offer made to a disabled applicant because of
the cost for the support necessary to enable her to do the job was not direct discrimination (although it
might be discrimination arising from a disability).
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Discrimination arising from disability
This occurs where A treats B unfavourably because of something arising in consequence of B’s disability.
If it can be shown by the discriminator that the treatment is a proportionate means of achieving a
legitimate aim then this will be a defence to a claim of discrimination arising from a disability. So, for
instance, if an employee’s visual impairment means that he cannot work as quickly as others and his
employer dismisses him because of his low output, this dismissal will be discrimination arising from a
disability, unless it can be objectively justified.
An example provided by the EHCR Code is that of an employer who dismisses a worker because she has
had three months sick leave. The employer is aware that the worker has multiple sclerosis and most of
her sick leave is disability related. The employer’s decision to dismiss is not because of the worker’s
disability itself (so there is not direct discrimination). However, the worker has been treated
unfavourably because of something arising in consequence of a disability (the need to take a period of
disability related sick leave).
There is also no need to have a comparator in respect of disability arising from discrimination. A
comparator is required for direct discrimination. So, in considering whether or not a disabled worker
dismissed for disability related sickness absence amounts to discrimination arising from a disability, it is
irrelevant whether or not other workers would have been dismissed for having the same or similar
length of absence. It is not necessary to compare the treatment of the disabled worker with that of her
colleagues or any hypothetical comparator. The decision to dismiss her will be discrimination arising
from a disability if the employer cannot objectively justify it.
Another example would be a woman disciplined for losing her temper at work. However, this behaviour
was out of character and is a result of severe pain caused by a serious illness, of which her employer is
aware. The disciplinary action is therefore unfavourable treatment. This treatment is because of
something which arises in consequence of the worker’s disability, namely her loss of temper.
The EHRC Code explains that “the consequences of a disability include anything which is the result,
affect or outcome of the person’s disability”. The Code provides the following list of examples:

An inability to work unaided

A need for regular rest breaks or toilet breaks

Restricted diet

Slower typing speeds

Regular hospital appointments

Difficulties in using public transport

A need for specialist computer equipment

A need for private or quiet working environment
It is very important to note that discrimination arising from disability cannot occur unless the employer
knew (or should have known) about the employee’s disability. There will be no discrimination arising
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from disability if the employer can conclusively demonstrate that they did not or could not reasonably
have been expected to know that the employee had the disability. This knowledge is not required for
direct discrimination.
An example of this is the case of PC Media Limited v Millar UKEAT0395/12. In this case Ms Millar was not
considered for two alternative posts during a redundancy consultation process. The Employment
Tribunal concluded that this resulted from her absences caused by a disability. However, reviewing the
case, the Employment Appeal Tribunal said that the starting point depended on the conscious or
unconscious thought processes of the alleged discriminator. It was therefore necessary to identify the
individuals responsible for the act or omission and analysis of what they knew. So, if the alleged
discriminator knew about Ms Millar’s disability, it was then open to the Employment Tribunal to
conclude that Ms Millar had been discriminated against on the basis of something arising from her
disability.
Once again, the objective justification test applies to disability arising out of discrimination.
In addition, in accord with other areas of discrimination, it is possible to indirectly discriminate on the
basis of disability.
For instance, an employee with depression is dismissed by a government department for a poor
attendance record. Over a number of years the employee has repeated periods of short term absence
relating to her depression. Although the employer made adjustments by increasing the number of days
she could take before implementing its attendance management policy, the employer decided that it
could no longer support the employee’s short term absences and dismissed her for poor attendance.
The employee brings a number of claims including indirect disability discrimination and argues that the
attendance management policy is indirectly discriminatory towards employees with depression. When
considering justification, the Tribunal will closely examine the reasons given by the employer as to why
it could no longer support the employee’s short term absences.
In any disability claim the Tribunal will ask itself whether or not the employer should have made
reasonable adjustments to facilitate the continued employment of the disabled employee. The Tribunal
would have to ask itself whether or not there was less favourable treatment and if so, was the employer
under a duty to make reasonable adjustments and did the employer fail to comply with that duty.
From a practical point of view, any employer ought to consider making reasonable adjustments and
ought to make sure that there is evidence on the personnel file that they have considered making those
reasonable adjustments, even if the adjustments have been dismissed as being impractical.
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IV.
Race Discrimination
The Equality Act now uses the term “race” as an umbrella term for a number of difference facets that
together or individually express a persons “race”. The Equality Act defines the protected characteristic
of race by reference to “colour”, “nationality”, “ethnic origin” and “national origins” but also establishes
that this is not an exhaustive list.
The term “race” is relatively self-explanatory. The term “ethnic origin” is somewhat more confusing but
the following groups have been held to compromise distinct ethnic groups in recent case law:

Irish travellers (O’Leary v Allied Domecq Inns Limited).

Scottish travellers (McLennan v Gypsy Traveller Education and Information Project).

European Roma (European Roma Rights Centre v Immigration Officer at Prague Airport).
In Gwynedd County Council v Jones 1986 ICR833, EAT, the Employment Appeal Tribunal gave support to
an Employment Tribunals conclusion that the English and Welsh were separate ethnic groups as distinct
from having separate nationalities or national origins.
The situation can be more complicated in relation to religious groups. In Seider v Gillette Industries
[1980] IRLR427, the EAT held that Jews constituted an ethnic group and that discrimination against a
person because they are Jewish amounted to race discrimination. Sikhs are also a distinct ethnic group
for race discrimination purposes (Mandla v Dowell Lee [1983] ICR385). Muslims, whilst a group of
persons unified only in their religious beliefs, generally are not held to constitute a “race” as they are
not a group of people with a common geographical location (who can therefore claim ethnic origin) and
those who merely trace their belief to a common brief (Mandla Dowell Lee). However, it is possible for
Muslims to argue indirect race discrimination on the basis that they are more likely to be Asian (JH
Walker Limited v Hussain [1996] IRLR11).
In considering any claim for discrimination in respect of ethnic or religious origin it is also important to
consider whether there may be a claim for discrimination on the grounds of religion and belief (see
later).
As in other areas of discrimination the person may be subjected to race discrimination, which is:

Direct discrimination

Indirect discrimination

Harassment

Victimisation
In the case of direct discrimination, the employee will have to show that they were treated less
favourably than a real or hypothetical comparator (i.e. someone who is the same as the Claimant in all
material respects but is not of that race). It is for the Tribunal to determine what amounts to less
favourable treatment for direct discrimination purposes but they must find for direct race discrimination
to occur that the less favourable treatment must be “because of race”. This requires the Tribunal to
consider the “reason why” the Claimant was treated less favourably – what was the employers
conscious or sub conscious reason for the treatment (Nagrajan v London Regional Transport and Others
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[1999] IRLR572). The discriminatory reason need not be the sole or even the principle reason for the
employer’s action. If race was a “substantial cause” then the Tribunal can find in favour of the Claimant
on a claim of race discrimination.
It is also noteworthy that less favourable treatment can be “because of” race under the Equality Act,
regardless of whether the reason for the treatment is the victim’s race. For instance, the following
scenarios might amount to direct discrimination:

An employer treats an employee less favourably because of the race of someone with whom the
employee associates – for example, because he has black friends.

An employer treats an employee less favourably because the employer perceives that the
employee is of a certain race. An example would be where an employer rejects a job application
from a white woman whom he wrongly thinks is black because the candidate has an African
sounding name.

Discrimination against a person because they have refused to follow a discriminatory
instruction. This follows the case of Showboat Entertainment Centre Limited v Owens [1984]
ICR65 where an employee dismissed for refusing to follow instructions to discriminate against a
black colleague was protected under the old Race Relations Act 1976.
It is also noteworthy that in cases of race discrimination the race of the discriminator is entirely
irrelevant. It does not matter whether or not the discriminator has the protected characteristic in
question (for instance a black person persecuting another black person). The justification defence is also
unavailable in cases of direct discrimination (it is only available for claims of indirect discrimination).
The following case is a good example of direct discrimination in practice:
SIGNIFICANT CASE
Royal Bank of Scotland Plc v Morris UKEAT/0436/10
In this case the Employment Appeal Tribunal upheld the decision of an Employment Tribunal that
Mr Morris, a black employee who complained about his manager’s conduct, was discriminated
against directly when a senior manager commented erroneously that his complaint was one of race
discrimination. The senior manager acted as he did because of an assumption – a stereotypical
assumption that a black employee complaining about treatment by a white colleague must be
alleging race discrimination. A Tribunal was therefore entitled to decide that the senior manager
acted as he did because Mr Morris was black and not simply because he was of a different race
from that of his manager.
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Indirect Discrimination
As in the case of disability and age, in-direct discrimination occurs with the application of a provision,
criterion or practice which indirectly prejudices persons belonging to a particular racial group.
An example is Hussain v Saints Complete House Furniture [1979] IRLR337 in which a company refused to
interview applicants living in a certain postal district as it believed that they were usually unemployed
people who tended to gather around the workplace and create a negative atmosphere for potential
customers. Given that a significant portion of residents in that area were black, the employer’s condition
excluded a significantly higher proportion of black applicants than white. The employer was found to
have indirectly discriminated against a black job applicant on this ground.
There will be no in-direct discrimination if the employer’s actions are objectively justified. To establish
the defence of justification, the employer will need to show that there is a legitimate aim (a real
business need) and that the PCP is a proportionate way to achieve that aim.
An example which shows how this defence works in practice, and also demonstrates the “cut off point”
that it will not work, is that of a superstore which insists that all its workers have excellent spoken
English. This might be a justifiable requirement for those in customer facing roles and in that case the
defence of justification would be available. However, for workers based in the stock room, the
requirement could be in-directly discriminatory as it is less likely to be objectively justified as a stock
room worker is not customer facing and does not necessarily have to have excellent spoken English.
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V.
Sex Discrimination
The concept of “sex discrimination” is limited to gender and cannot be extended to embrace
discrimination on the grounds of a person’s sexual orientation (there is no separate protection for
sexual orientation discrimination).
Sex discrimination applies in relation to recruitment, training, promotion and dismissal as well as non
contractual benefits. However, less favourable treatment because of sex in relation to pay and other
contractual terms is covered under the Equal Pay Act 1970. Sex discrimination protects a wide range of
individuals, including employees, contract workers, partners and office holders. It applies to most
aspects of the employment relationship such as recruitment, training, promotions, transfers and
dismissals. Discrimination may be direct or in-direct and harassment and victimisation is also prohibited.
Direct discrimination occurs where because of sex A treats B less favourable than A treats or would treat
others. It remains the case that not every difference of treatment will necessarily constitute “less
favourable treatment”. For instance, there might be a difference in treatment if men and women are
required to wear different uniforms but as long as the standards set are equivalent, the treatment will
not be considered to be less favourable (Smith v Safeway Plc [1996] IRLR456).
A good example of this is the case of Smith v Rees ET/2501040/12. In this case, the treatment of a
female employee was held to be less favourable in the context of a uniform policy. The employee was a
waitress and she was given a blouse, which she felt was too low, too tight and showed too much
cleavage. She told her employer that she was uncomfortable wearing the blouse. The employer accused
her of being a “prude”. She was dismissed. She brought a claim of sex discrimination and this was
upheld by the Employment Tribunal who concluded that a male employee would not have been
required to wear a uniform like that and therefore the waitress was treated less favourably on the
grounds of her sex.
As in other areas of discrimination, there is a need for a comparator. An employee will need to show
that they have been treated less favourably than a real or hypothetical comparator (a member of the
opposite sex whose circumstances are not materially different to theirs). The relevant “circumstance”
are those factors which the employer has taken into account in deciding to treat the Claimant as it did,
with the exception of their sex.
The following cases demonstrate these of hypothetical comparators in direct sex discrimination cases:
SIGNIFICANT CASES
Grieg v Community Industry and Another [1979] IRLR158
In this case the Claimant was a woman who was refused employment in an all male team of
decorators. The employers argued that a man would equally have been refused employment in all
female team. The employment appeal Tribunal held that the relevant circumstances were those of
the job in question, not a hypothetical job which did not exist. The issue was how the employer
would have treated a male applicant for the job in question, which was with an all male team. The
Claimant was therefore discriminated against on the basis of her sex.
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Home Office v Saunders UKEAT/0260/05
This case concerned a female prison officer. She brought a claim for sex discrimination on the ground that
she had to carry out “rub down” body searches on male prisoners where as male prison officers were
prohibited from carrying out such searches on female prisoners. The Home Office argued that since officers
of both sexes were required to conduct searches on male prisoners, there was no discrimination. The
Employment Appeal Tribunal said that the correct comparator was a male prison officer being ordered to
carry out a search on a female prisoner. The principle involved was the requirement of a prison officer to
conduct a rub down search of a prisoner of the opposite sex.
Kettle Produce Limited v Ward UKEAT/0016/06
In this case the Claimant complained that her manager had followed her into the female toilets and
shouted at her accusing her of shirking her duties. She argued that this was sex discrimination
because of the affront of her dignity of being followed into the female toilets by a male manager.
The Employment Appeal Tribunal said that the comparator was a male employee being shouted at
in the male toilets. However, for the comparison to have any meaning, the gender of the
discriminator also had to be changed. Therefore, the question for the Tribunal was would the
employer “in the form of a female manager” with the same robust management style, treat a male
cleaner who she believed to be shirking in the same way?
For direct discrimination to occur the less favourable treatment must be “because of sex”. In affect, this
requires the Tribunal to consider the reason why the Claimant was treated less favourably and what was
the employer’s conscious or sub conscious reason for the treatment.
SIGNIFICANT CASES
Martin v Lancehawk Limited [2004]
A male managing director had an affair with a female employee. After the affair ended the
employee was dismissed. The employee brought a claim of sex discrimination arguing that but for
her gender, she would not have been dismissed since the MD would not have had an affair with a
man. The EAT rejected this approach. They said that a comparison with how the MD would have
treated a heterosexual male (with whom he would not have had an affair) did not assist in
answering the question of why she had been dismissed. The EAT doubted that a comparison could
be made in this case but assuming that it could then the only appropriate comparison would have
been with a hypothetical male employee with whom the MD had engaged in a homosexual
relationship which had then broken down. There was no evidence to suggest that he would have
been treated any differently so the Claimant’s sex could not be the reason for her dismissal.
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B v A UKEAT/0450/06.
In this case the EAT held that the Tribunal had wrongly applied the “but for” test when finding that the
dismissal by a solicitor of his assistant with whom he had been having an intimate relationship was an
act of sex discrimination. The dismissal had occurred because of the breakdown of the relationship,
nothing more and nothing less. Had the Tribunal made the appropriate comparison (a homosexual male
employer having a relationship with a homosexual male employee) it would have concluded that the
treatment of the Claimant on the comparator would have been the same (a dismissal driven by feelings
of jealousy on discovery of infidelity).
As in other areas of discrimination, indirect discrimination also occurs in sex discrimination where a
provision, criterion or practice is applied which places those of the opposite sex at a particular
disadvantage and the PCP cannot be justified as a proportionate means of achieving a legitimate aim.
There does not need to be a formal policy in place in order for an employee to challenge a management
decision affecting them. In British Airways Plc v Starma [2005] IRLR862 Ms Starma, a pilot, made a
request to work 50% of her full time hours following her return from maternity leave. BA rejected this
request but offered her a post working 75% of her full time hours. In the Employment Appeal Tribunal
BA argued that this decision could not amount to a PCP because it was a one-off discretionary
management decision. The EAT said that although the decision might not amount to a criterion or
practice, a one-off discretionary decision can still be a “provision”.
Obviously the defence of justification is available to claims of indirect discrimination.
SIGNIFICANT CASES
Allen & Others v GMB [2008] EWCACiv810.
In this case the Court of Appeal agreed that the GMB had indirectly discriminated against female
members who had equal pay claims. In trying to strike a balance between back pay, future pay and
pay protection, and having reached a deal with Middlesbrough City Council, the BMG had
recommended settlement of equal pay claims at 25% of their potential value. It was found that
although the union was pursuing legitimate aim, its manipulation of its female employees into
settling their equal pay claims had not been a proportionate means of achieving that aim and was
therefore not justified.
Blackburn and Another v West Midlands Police [2008] EWCACiv1208.
The Court of Appeal agreed that night shift bonuses, whilst disadvantaging women with child care
responsibilities, were justified. In singling out for a reward those frontline officers doing this
particularly demanding area of police work, the employer was pursuing a legitimate aim and this
could not be achieved if those not doing such work received the bonuses as well.
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Faulkner v Chief Constable of Hampshire Constabulary UKEAT/0505/05.
In this case the Employment Appeal Tribunal agreed that a policy that police officers in a personal
relationship should not serve together as supervisor and subordinate was justified. It was a
proportionate way of meeting the real need to manage the risk that undue influence or favouritism
would affect the integrity of one or both of the partners.
It is worth noting that sex discrimination also covers conduct related to sex. For example:

Conduct that, regardless of the form it takes, is by reason of sex. An example would be a male
employee places tools on a high shelf to make them hard to reach by a female employee or
refuses to help a female employee lift heavy objects when they would normally help a male
employee. This may be intentional bullying but can also be unintentional or subtle and insidious
sex discrimination.

Conduct that, regardless of the reason for it, is otherwise related to sex because of the form it
takes. An example would be telling sexist jokes that are not directed at anyone in particular but
which colleagues (regardless of their gender) find offensive.

A case example is Nathwani v University of the Arts London ET/2201741/11. In this case an
Employment Tribunal held that behaviour relating to a past relationship between two
colleagues amounted to conduct “related to” an employee’s sex. In this case the Claimant was
subjected to harassment in relation to the behaviour of her line manager after their personal,
sexual relationship had ended. This behaviour included his making of protestations about his
continuing feelings for the Claimant, speaking to her colleagues about those feelings and
treating her in a “cold manner”. A Tribunal found that this behaviour amounted to unwanted
conduct relating to the Claimant’s sex. The manager would not have had similar feelings for a
man and nor would he have expressed himself in such a way to a man.
If conduct related to sex has the purpose of either violating an employee’s dignity or creating an
intimidating, hostile, degrading, humiliating or offensive environment then nothing more is required.
This will amount to harassment. When the conduct is not shown to have the intention of harassing the
employee the question of whether or not the conduct has that affect must be assessed from the
subjective view point of the employee. However, it must be reasonable for the conduct to have that
affect and provided any offence causes unintentional upset there will be no harassment if the victim is
being “hypersensitive”.
Unwanted conduct of a sexual nature would also apply to cases of sexual harassment. The following
cases are examples:
SIGNIFICANT CASES
Insitu Cleaning Company v Heads [1995] IRLR4.
In this case a remark was made to a woman about her breasts. The employer said that it was not
sexual harassment because a similar comment could have been made to a man – for example, in
relation to a balding head or beard. The EAT rightly held that this was an absurd proposition. A
remark made to a woman about her breasts cannot be equated to a remark to a man about a bald
head, since one is sexual in nature and the other is not.
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Moonsar v Fiveways Express Transport Ltd [2004] UKEAT04760427092
In this case the Claimant was a data entry clerk who worked evening shift. She gave evidence in
Tribunal that during her shifts she had been aware on three occasions of male colleagues
downloading pornographic images onto computer screens. The Claimant had not been shown the
images and she had not made any complaint at the time. The Tribunal found no discrimination.
However, the EAT on dealing with the case substituted a finding of discrimination holding that this
was treatment which would obviously undermine the Claimant’s dignity.
VI.
Sexual Orientation Discrimination
Sexual orientation is one of the “protected characteristics” covered by the Equality Act 2010. The
principles in relation to sexual orientation discrimination are identical to those is all other areas of
discrimination (that is to say that the discrimination may be direct or indirect and a comparator is
genuinely required).
Under the Equality Act, sexual orientation is defined as an individual sexual orientation towards persons
of the same sex, persons of the opposite sex or persons of either sex. Protection is therefore provided
for gay men, lesbians, bi-sexuals and heterosexuals. The definition does not include particular sexual
practices, nor preferences for particular types of sexual activity such as sadomasochism or bestiality.
Neither is protection extended to cover celibacy.
An employee arguing direct sexual orientation discrimination will have to show that they have been
treated less favourably than a real or hypothetical comparator who circumstances are not materially
different to theirs. So if a claim on discrimination based on an employee’s homosexuality, the
comparator must be someone who is identical to the employee in all material respects but is not a
homosexual.
The Equality Act does not limit claims only to those based on the complainant’s sexual orientation but
also covers association. So for example, if an employee claims that he has been discriminated against
because he has gay friends the comparison will be with someone who does not have gay friends.
Therefore, despite the fact that the employee is not a homosexual he can still claim under this heading.
The European Human Rights Code provides the following examples:

A worker who is gay and in a civil partnership has complained that he was refused promotion
because of his sexual orientation. His married colleague is promoted instead. The fact that the
worker is in a civil partnership and the colleague is named will not be a material difference in
their circumstances so he would be able to refer to his married colleague as a comparator.

A worker receives a telephone call informing him that his civil partner has been involved in an
accident. The worker has been recorded as next of kin on his civil partner’s medical notes and is
required at the hospital. The employer has a policy that only allows emergency leave to be taken
where a spouse, child or parent is affected and refuses the worker’s request for leave on this
basis. This would amount to discrimination because of sexual orientation.
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The following examples are taken from recent case law:
SIGNIFICANT CASES
Hubble v Brooks ET/1600381/05.
Mr Hubble wanted to run Mr Brooks’ pub. Mr Hubble was asked if he had a wife or girlfriend and told Mr
Brooks that he was gay and had a long term partner. Mr Brooks replied that there was “no way” he would
employ a gay couple as it would be bad for business. This was found to be direct discrimination as Mr
Hubble and his partner were experienced bar managers and should have been considered for the
position.
Heggarty v Edge (Soho) Limited ET/2200027/05
In this case the Claimant was a heterosexual woman. She was allegedly made redundant from a gay
bar. The Tribunal did not accept that this was a genuine redundancy when the directors wanted to
“freshen up” the bar in which the Claimant worked and those subsequently employed were male
gay bar staff. The Tribunal was therefore satisfied on the evidence that this was an unfair dismissal
and there had been direct discrimination against the Claimant on the grounds of her sex and sexual
orientation. This case illustrates that both gay and straight employees are protected by the
legislation.
X v Y ET/2201308/06.
In this case, X accidentally sent a pornographic text message intended for his male partner to a
female employee. The employer (who had previously made homophobic comments) put pressure
on X to resign, calling X a “pervert” who would never be believed at a disciplinary hearing. X
refused but was subsequently dismissed at the disciplinary hearing. The Tribunal held that the
employer had made up its mind to dismiss X before the disciplinary hearing. X had therefore
suffered a detriment and his dismissal was due to his
sexual orientation.
Whitehead v Brighton Marine Palace and Pier Company Ltd ET/3102595/04
In this case Mr Whitehead, who was gay, was not on good terms with his line manager, Mr Q. In
April 2004 another employee told Mr Whitehead that she had heard Mr Q refer to him as a “f…ing
chutney ferret”. Mr Whitehead felt that an adverse comment had been made to him by Mr Q and
that this comment had been influenced by homophobia. Mr Whitehead therefore resigned
claiming constructive unfair dismissal, direct sexual orientation discrimination and sexual
orientation harassment. The Tribunal found that Mr Q had made the “chutney ferret” remark and
that this amounted to harassment, even thought the comment had not been directly made to Mr
Whitehead. It also found that the comment was sufficient to amount to a fundamental breach of
contract as it had violated Mr Whitehead’s dignity and rendered his constructive dismissal unfair.
However, on the sex discrimination claim the Tribunal found that Mr Q had good working
relationships with other gay employees and that any unfair treatment was therefore not due to
Mr Whitehead’s sexual orientation so this aspect of the claim failed.
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As in other areas of discrimination an employer can be vicariously liable for discrimination of
harassment committed by an employee in the course of employment. However, there is a defence
available if an employer can show that it took all reasonable steps to prevent the employee from doing
the discriminatory act.
SIGNIFICANT CASES
Boyd v Littlehaven Hotel ET/2502182/06
Mr Boyd was a chef and was dismissed after hitting a colleague who made comments about his
sexual orientation. The Tribunal however rejected Mr Boyd’s sexual orientation discrimination
claim. It found that Mr Boys had been provoked by the hotel, which had a strong equal
opportunities policy and a vigorous anti bullying policy, would have disciplinary the colleague had
there been corroborating evidence against him. The Tribunal therefore found that the hotel had
done everything practicable to apply its equal opportunities policy and was not liable for the
homophobic remarks made to Mr Boyd.
VII.
Gender Re-assignment discrimination
The Equality Act provisions concerning gender reassignment (which may be direct or indirect) covers
discrimination, harassment and victimisation and is available to a wide range of people including
employees, contract workers, partners and office holders.
A person has the protected characteristics of gender re-assignment if the person is “proposing to
undergo, is undergoing or has under gone a process (or part of a process) for the purpose of re-assigning
the purpose sex but changing physiological or other attributes of sex). So a woman undergoing reassignment to be a man, or a man undergoing re-assignment to be a woman, both share the
characteristics of gender re-assignment.
It is important to note that medical supervision is not required for the individual to be protected against
gender re-assignment discrimination. So gender re-assignment is therefore a “person process” (moving
from a birth sex to a preferred gender) rather than necessarily a medical process. However, what is
required is personal and permanent commitment on the part of the individual to undergo gender reassignment. As such, there is no protection to transvestites who have not made a permanent
commitment to live in their non birth gender but simply choose to temporarily adopt the appearance of
the opposite sex.
So an employee who was born physically male but decides to spend the rest of his life as a woman and
declares his intention to his manager at work makes the appropriate arrangements and then starts life
at work and home as a women (regardless of whether or not he is undergoing any medical treatment to
change his gender) would be protected.
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An employee claiming gender re-assignment discrimination will need to show that they have been
treated less favourably than a real or hypothetical comparator when they are claiming direct
discrimination (remember the comparators are not relevant for indirect discrimination).
Here are some examples from case law which will illustrate how gender re-assignment discrimination
operates in practice:
SIGNIFICANT CASES
Croft v Royal Mail Group Plc [2003] IRLR592
The Court of Appeal found that an employer had not directly discriminated against the preoperative male to female transsexual when it refused her to use the female toilets. The employee
had an initially agreed to use a disabled toilet when female employees had indicated that they
would not be happy with the Claimant using the female toilets. The Court of Appeal found that the
status of transsexual does not automatically entitle the employee to be immediately treated as a
woman with respect to toilet facilities.
Lawrence v Wills T/A Zeus Sauna ET/2604029/09
The employee was undergoing a process of gender re-assignment from male to female. She was
employed as a receptionist at a massage sauna, which was also a meeting place for gay and
bisexual men. Her employer required her to attend work presenting as a man and to be addressed
as “Marc” and not “Abigail”, feeling that male customers in a state of undress might object to the
presence of a woman. It was found that this was unwanted conduct relating to sex that had the
affect of creating an intimidating, hostile, degrading, humiliating or offence environment for the
employee. The Claimant clearly wished to be known as Abigail and this was “an important part of
her real life experience”
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VIII.
Religion or Belief Discrimination
Religion or belief is one of the protected characteristics covered by the Equality Act. Discrimination may
be direct or indirect. A person may be discriminated against on the basis that their religion or belief, or
victimised or harassed as in other areas of discrimination law. Protection is a provided to employees,
contract workers, partners and office holder.
The difficulty in this area of discrimination law is the definition of religion or belief. It has been held as
follows:

“Religion” means any religion and a reference to religion also includes a reference to a lack of
religion.

“Belief” means any religious or philosophical belief that a reference to belief includes a
reference to a lack of belief.

It can be seen that it is not clear from this definition what might count as a religion or a religious
belief or what types of philosophical belief might be protected.

There are obviously a number of accepted religious beliefs (Christianity, Hinduism, Islam,
Judaism, Rastafarianism, Sikhism and Zoroastrianism) which are regarded as religions. Certain
other collective religions have also been recognised such as Druidism and Scientology.
In Campbell and Cosans v UK (1982) 4EHRR293. The European Court of Human Rights helpfully set out a
number of requirements for religious belief to qualify for protection:

The belief must be genuinely held.

It must be a belief, not in an opinion or view point based on present state of information
available.

Must be a belief as to a weighty and substantial aspect of human life and behaviour.

Must contain a certain level of cogency, seriousness, cohesion and importance.

Must be worthy of respect in a democratic society, not incompatible with human dignity and in
not conflict with the fundamental rights of others.
The definition of philosophical belief is even more tricky. The definition given above from Campbell and
Cosans still holds in the case of philosophical belief. However, please note the following differences:

A philosophical belief must have a “similar status or cogency to a religious belief” but need not
“elude to a fully fledged system of thought”.

It need not be shared by others.

Whilst support of a political party does not amount to a philosophical belief, a belief in a political
philosophy or doctrine such as socialism, marxism, or free market capitalism may qualify.

A philosophical belief may be based on science. So Darwinism (which is based on science) “must
plainly be capable of being a philosophical belief”.
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Here are some examples from case law:
SIGNIFICANT CASES
Granger Plc and Others v Nicholson [2010] IRLR4.
The Claimant said that he had a “philosophical belief that mankind is heading towards catastrophic
climate change and therefore we were under a moral duty to lead our lives in a manner which
mitigates or avoids this catastrophe for the benefit of future generations and to persuade others to
do the same”. This was found capable of being a “belief” for the purposes of the Equality Act.
Hashman v Milton Park (Dorset) Ltd T/A Orchard Park ET310555/2009
The Employment Tribunal found that a belief in the sanctity of life extending to a fervent anti-fox
hunting belief was a philosophical belief. However, the Tribunal in this case said that its decision
was based on the facts of the case and it did not mean that all opponents of fox hunting held a
philosophical belief for these purposes.
Maistry v BBC ET/1313142/10
It was found that a belief in the “higher purpose” of public service broadcasting to encourage
debate and citizenship in a public space was philosophical belief that qualified for protection under
the Equality Act.
Farrell v South Yorkshire Police Authority ET/2903805/10.
The Tribunal found that an employee’s belief that the 9/11 and 7/7 attacks were operations
authorised by the US and UK Governments and that the media was controlled by a global elite
seeking a new world order were not philosophical beliefs. The employee’s beliefs were honestly
held, related to weighty and substantial aspects of human life and were compatible with human
dignity. However, they did not meet “even a bare minimum standard of coherence and cohesion”
and the beliefs were “absurd”.
Baggs v Fudge ET/1400114/05.
The Claimant said that he had been discriminated against on the grounds of his membership of the
BNP which in his view amounted to a belief. The Tribunal held that the BNP was “peculiar” in that it
restricted membership on racial grounds but it did not require members to hold a particular
religious, philosophical or political belief. His claim was therefore rejected.
Power v Greater Manchester Police Authority UKEAT/0087/10.
The Employment Appeal Tribunal upheld a Tribunal’s decision that a police trainers dismissal was
not due to his belief and spiritualism. Although one of the reasons for the employee’s dismissal was
that he had distributed spiritualist posters and CDs at work, this was not enough to render the
dismissal directly discriminatory. This was because the Tribunal found that the employee was not
dismissed because he held the protected belief (which might be capable of being defined a
philosophical belief) but because he had manifested those beliefs at work in an unacceptable
manner. This is a rare form of discrimination and one which is often forgotten about. Once again,
the discrimination may be direct or indirect, and the employee and the individual may be
discriminated against or victimised or harassed. Protection applies to employees, contract workers,
partners and office holders.
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IX.
Discrimination on the basis of marriage or civil partnership
Under the Equality Act it is unlawful for an employer to:

Discriminate directly by treating a job applicant or employee less favourably than others
because that applicant or employee is married or a civil partner.

Discriminate indirectly by applying, without justification, a provision, criterion or practice that
disadvantages job applicants or employees who are married or civil partners.

Victimise a job applicant or employee because they have made or intend to make a marriage
and civil partnership discrimination claim.
There is currently no case available for analysis in respect of this type of discrimination. However, with
the adoption of same sex partnership, it is possible that such cases may become more common.
With respect to civil partnerships, the Civil Partnership Act 2004 created rights between civil partners
and third parties including employers. This means it is unlawful to directly or indirectly discriminate
against married persons or civil partners.
X.
Conclusion
Anyone reading through this paper could not fail to be dismayed by the extent and complexity of UK
discrimination law. Within the past 10 years the field has expanded dramatically from race, sex and
disability to encompass in addition discrimination on the basis of age, sexual orientation, gender
reassignment, religious or philosophical belief and marital status. This makes it easier for issues relating
to perceived acts of discrimination to come into other areas of HR practice, such as disciplinary,
capability and grievance processes. For this reason, it is vitally important for HR practitioners to be
aware of the nature of UK discrimination law so as to be able to deal with issues appropriately and
sensitively.
It is also vitally important for firms to have in place proper disciplinary, grievance and equal
opportunities policies to enable them to deal with these issues effectively and to make their standards
known to employees.
For any further information please contact:
David Malamatenios, Employment Partner
[email protected]
+44 020 7354 3000
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An Essential Guide on Discrimination Law

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