Unit 2 - Discrimination

Form of the UK constitution

It does not have a codified constitution, no single written document which serves as the supreme law

Sources of UK law

-Statute law: laws passed by Parliament

-Common law: Judicial decisions and precedent

-Conventions: established practices that are followed but not legally enforced

-Works of Authority: Scholarly interpretations and commentaries on constitutional matters

What is the primary tool in the UK to establish anti-discrimination and human rights protections ?

Legislation

What is parliamentary sovereignty + what does it mean for anti-discrimination legislation ?

A constitutional principle meaning that :

• Parliament is the supreme law-making body and may enact laws on any subject-matter.

• No Parliament may be bound by a predecessor or bind a successor.

• No person or body, including a court of law, may question the validity of Parliament’s enactments.

→ anti-discrimination legislation is not permanently secure, it can be removed by future legislation.

How to use the words “discriminate” and “discrimination”

-To discriminate against someone

-”discrimination” is an uncountable noun, (= never plural or singular) :

• ”To be a victim of discrimination”

• “This is an example of discrimination.” (not This is a discrimination.)

History of anti-discrimination legislation

UK has a long history of inequality and discrimination, leading to marginalised groups demanding equality since 1945

• First wave of anti-discrimination legislation emerging starting in the 1960s, i.e. :

  • Equal Pay Act 1970

  • Sex Discrimination Act 1975

  • Race Relations Act 1976

  • Disability Discrimination Act 1995

• Influence of the ECHR led to the HRA 1998

Who does the HRA 1998 apply to + effect

-It allows individuals to seek legal remedies for breaches of the European Convention on Human Rights in UK courts

-It applies :

• Primarily to public bodies and to “hybrid public authorities”

• But has an indirect horizontal effect: can influence private disputes between individuals or private entities as courts and tribunals are required to interpret and apply laws in a manner consistent with the ECHR

What are hybrid public authorities ?

Private organisations which perform public functions

What used to play a significant role in shaping anti-discrimination law in the UK + what changed ?

The European Union used to play this significant role, prior to Brexit

Equality Act 2010

-Implemented following EU equality directives

-Act of Parliament that consolidated, updated and supplemented prior anti-discrimination Acts and Regulations in the UK, with the purpose of protecting rights and promoting equality and opportunity for all.

-Protects individuals from direct and indirect discrimination, harassment, and victimisation.

-Provides a body to overview correct application of anti-discriminatory provisions which assists plaintiffs in legal proceedings.

-Has enforcement powers and can encourage anti-discrimination initiatives

Where does the Equality Act 2010 apply ?

Applies in England, Wales and Scotland

(Northern Ireland has its own anti-discrimination laws)

What is direct discrimination ?

When Person A treats Person B less favourably because of a protected characteristic.

What is indirect discrimination ?

When an apparently neutral provision (a provision which applies to everyone), criterion, or practice (PCP) applied to all employees causes a disadvantage for those employees with protected characteristics

What are the 9 protected characteristic under the Equality Act 2010 ?

-Disability

-Race

-Religion or belief

-Sex

-Sexual orientation

-Gender reassignment

-Age

-Pregnancy and maternity

-Marriage and civil partnership

What a disability ?

A physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

What is a belief ?

Any religious or philosophical belief, including a lack of belief (atheism).

What is gender reassignment (+ criticism) ?

-The process of transitioning from one gender to another.

-This terminology is used in the Equality Act but is outdated : correct terms are transgender and gender identity

What does maternity refer to (employment and non-work contexts) ?

-Refers to the period after the birth, and is linked to maternity leave in the employment context.

-In the non-work context, protection against maternity discrimination is for 26 weeks after giving birth, and this includes treating a woman unfavourably because she is breastfeeding.

When is discrimination not unlawful ?

When an apparently neutral provision, criterion, or practice (PCP) is a “proportionate means of achieving a legitimate aim”

What are employers expected to do regarding employees with disabilities ?

Make reasonable adjustments when possible in order to allow the employee to do their job as well as others.

What are “reasonable adjustments” ?

Changes to the work environment that employers are expected to make that allow people with disability to work safely and productively

Requirement for the unfair treatment to qualify as discrimination

It must be motivated by the victim’s protected characteristics

Extent of the protection under the Equality Act 2010

Its protections are expansive :

• People associated with those who have protected characteristics are also protected.

• Discrimination based on a falsely perceived characteristic is also unlawful.

• Protections apply in a variety of situations, including provision of public or private goods, education, or the workplace

What is harassment + when will something be considered as such ?

An unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

• A one-time occurrence may be considered harassment

• Victims may claim that they were harassed even if they never told the perpetrator that their behavior was unwanted.

Harassment and employers

-Employers have a legal duty to implement measures preventing sexual harassment since 2024 (thanks to the Worker Protection Act 2023, an amendment of the Equality Act 2010)

-An employer will be held liable for harassment by a third party (ex. Customer, contractor) if :

• Harassment occurred on two previous occasions
  AND

• No reasonable adjustments were taken to protect the employee

-Employers must take proactive and preventative steps to comply with this obligation

What is victimisation ?

The unfair treatment of individuals because they complained about discrimination or harassment.

Purpose of provisions on victimisation

They aim to protect individuals from any detriment they may face as a result of reporting or complaining about harassment.

What body (apart from courts) regulates the enforcement the Equality Act 2010 and how ?

-The Equity and Human Rights Commission

-Through investigations, litigation and agreements

Possible proceedings pursuant to violations of the Equality Act 2010 claims

• Individuals who claim violations of the Equality Act may file claims in civil courts (generally a county court).

• When discrimination occurs at work the employment tribunal has jurisdiction.

• In Wales and Scotland immigration tribunals and education tribunals hear discrimination cases related to these areas.

• Acts giving rise to a claim in breach of the Equality Act 2010 can also give rise to criminal proceedings.

What is a remedy ?

The legal means in a tort law to recover a right or to prevent or obtain redress for a wrong.

Possible remedies in discrimination cases if the defendant is found liable (in a civil court)

-Damages (usually), meaning being ordered to pay compensation to the claimant for :

• Any expenses caused by the discrimination (ex: job search, medical costs)

• Any emotional harm suffered

• (damages will be increased if the discrimination was especially malicious)

-Injunctive relief

(⚠ No remedies granted by the civil courts may prejudice pending or future criminal proceedings.)

What is injunctive relief ?

A court order requiring a person or entity to do, or to refrain from doing, a specified act.

Possible remedies in work-related discrimination cases if the defendant is found liable (in a employment tribunal)

The employment tribunal can :

• Grant financial compensation to the victim

• Make general non-binding recommendations to the employer in order to benefit the whole workforce.

Difference between a court-ordered injunctive relief and a recommandation from the employment tribunal

Unlike court-ordered injunctive relief these recommendations may not be binding.

What may an employment tribunal need, when dealing with a claim regarding the equal value of two person’s work ?

In a question of whether one person’s work is of equal value to another’s they may require a panel of independent experts to prepare a report on the question before deciding the case.

HRA vs Equality Act : when does each one apply regarding discrimination ?

-Equality Act :first recourse for a claim of discrimination against any of the 9 protected characteristics in English law, including if an individual claims discrimination by a public authority.

-HRA :

• Adresses violations of human rights that are not protected in the Equality Act
  I.e : Right to life, right to privacy

• When discrimination involves issues like freedom of expression, fair trials, education or torture which

  are not specifically addressed under the Equality Act.

• If a company has a general policy of discrimination it would fall primarily under the HRA.