12. Equality at Work

Lecture Overview

  • Topic: Equality at Work

  • Course: Labour Law 2025

  • Lecturer: Dr. Vera Pavlou

Intended Learning Outcomes

  • Outline the different protected characteristics under the Equality Act 2010.

  • Explain key concepts:

    • Direct discrimination

    • Indirect discrimination

    • Harassment

    • Victimisation

    • Discrimination arising from disability

    • Reasonable adjustments

    • Positive action

  • Describe the main exceptions in the Equality Act (EA) to the prohibition of discrimination in employment.

  • Explain the scope for employers to take positive action.

  • Outline key aspects of enforcement of complaints and the applicable remedies.

  • Apply legal principles to different factual scenarios.

Overview of Lecture Content

  • Historical and current legislation.

  • Coverage and application of laws.

  • Protected characteristics under the law.

  • Prohibited conduct including:

    • Discrimination

    • Harassment

    • Victimisation

  • Exceptions to the rules.

  • Positive action strategies.

  • Procedure for complaints and remedies available.

Historical Legislation

  • Equal Pay Act 1970: Aimed at abolishing wage disparity based on gender.

  • Sex Discrimination Act 1975: Provides protection against discrimination based on sex.

  • Race Relations Act 1976: Addresses discrimination based on race.

  • Disability Discrimination Act 1995: Protects individuals with disabilities from discrimination.

  • Employment Equality (Religion or Belief) Regulations 2003: Covers discrimination based on religion or belief.

  • Employment Equality (Sexual Orientation) Regulations 2003: Protects against discrimination based on sexual orientation.

  • Employment Equality (Age) Regulations 2006: Addresses age-related discrimination.

Current Legislation

  • Equality Act 2010:

    • Purpose: Reform and harmonize equality law; consolidate previous enactments related to discrimination and harassment based on personal characteristics.

  • Key Parts:

    • Part 2: Equality concepts

    • Part 5: Work regulations

    • Part 8: Prohibited conduct

    • Part 9: Enforcement procedures

    • Schedules: Specific details and exceptions.

Coverage of Employment

  • Defined in s83(2)(a) of the EA as:

    • Employment under a contract of employment

    • Contract of apprenticeship

    • Contract personally to do work.

  • Case Reference: Jivraj v Hashwani highlights the requirement for subordination, limiting the scope of application.

  • Critique of Coverage: Includes discussions on various roles like contract workers, partners, and apprentices in law.

Application of Discrimination and Harassment

  • Discrimination/Victimisation in Recruitment (s39):

    • Addressing selection and terms.

  • During Employment (s39):

    • Focus on terms, promotion, training, and benefits.

  • Harassment (s40):

    • Includes conduct that undermines employee dignity.

  • Post-Employment Issues (s108):

    • Discrimination or harassment after employment ends.

    • Case Reference: Jessemey v Rowstock Ltd.

Protected Characteristics (s4)

  • List of Characteristics:

    • Age

    • Disability

    • Gender reassignment

    • Marriage and civil partnership

    • Pregnancy and maternity

    • Race

    • Religion or belief

    • Sex

    • Sexual orientation.

Concepts of Discrimination

  • Direct Discrimination (s13):

    • Definition: A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

  • Key Legal Principles:

    • The ‘but for’ test applies (James v Eastleigh Borough Council; Shamoon v RUC).

    • Motivation is irrelevant (European Roma Rights Centre case).

    • Discrimination by association (EBR Attridge Law LLP v Coleman).

    • Wide interpretation of ‘less favourably’ (Birmingham City Council case).

    • Justifications provided for age-related discrimination must meet specific criteria.

Indirect Discrimination (s19)

  • Definition: Application of a provision, criterion, or practice (PCP) that:

    • Applies to persons not sharing the protected characteristic.

    • Puts or would put those sharing the characteristic at a disadvantage.

    • Should not be a proportionate means of achieving a legitimate aim.

  • Case Reference: Naeem v Secretary of State for Justice highlights the disadvantage.

  • Justification Test: Homer v Chief Constable of Yorkshire Police outlines case-specific requirements.

    • New introduction of s19A emphasizes the need for same disadvantage in case considerations.

Prohibited Conduct Related to Disability (s15)

  • Definition: Unfavourable treatment due to something arising from disability unless justified as a proportionate means of achieving a legitimate aim.

  • Duty to Make Reasonable Adjustments (ss20-22):

    • Triggers include PCP, physical environment, and auxiliary aids, aiming to alleviate substantial disadvantage.

Harassment (s26)

  • Definition: Engaging in unwanted conduct related to a protected characteristic that violates the worker's dignity or creates an intimidating/humiliating environment.

  • Case Reference: English v Thomas Sanderson Blinds, emphasizes the need for both subjective and objective assessments of the effect.

  • Employer's Duty: Reasonable steps must be taken to prevent harassment, especially sexual harassment (s40A).

Victimisation (s27)

  • Definition: Detriment because of a protected act, which could include bringing proceedings or providing evidence under the EA.

  • Causal Link: Essential to connect protected act and detrimental outcome.

    • Case Reference: Chief Constable of West Yorkshire Police v Khan consolidates understanding in relevant precedence.

Exercises on Key Concepts

  • Identify scenarios as examples of:

    • Direct discrimination

    • Indirect discrimination

    • Harassment

    • Victimisation

  • Scenarios:

    • Job advert requiring specific experience.

    • Promotion denial due to tribunal evidence.

    • Racist remarks in a team setting.

    • Prohibition of partner's attendance at a function after gender reassignment.

Exceptions to Prohibition of Discrimination

  • Occupational Requirements (Schedule 9, para 1): Allows for exceptions under specific occupational roles.

  • Additional exceptions include:

    • Organised religion (Schedule 9, para 2)

    • Religious ethos employers (Schedule 9, para 3)

    • Armed forces (Schedule 9, para 4).

Positive Action (s158)

  • Definition: Employers can take actions if they believe a group is disadvantaged, driving efforts to alleviate disadvantages or meet specific participation needs.

Positive Action in Recruitment (s159)

  • Employers may consider protected characteristics during recruitment and promotions if it is a proportional response to overcome disadvantage or increase participation, but only in tie-break scenarios.

Complaints Process

  • Time Limits (s123): Standard limit is 3 months for lodging complaints but can be extended under fair conditions.

  • Burden of Proof (s136):

    • Claimant must prove a prima facie case of discrimination.

    • Respondent must then prove non-discrimination.

    • Follows two-stage approach as in Igen v Wong.

Vicarious Liability in Complaints (s109)

  • Definition: Liable for actions taken in the course of employment; includes precedents like Jones v Tower Boot.

  • Defence available if reasonable steps were taken to prevent discrimination (s109(4)).

Remedies Available (s124)

  • Forms of Compensation:

    • Includes injury to feelings assessments as per guideline cases (Vento v Chief Constable of Yorkshire Police) and further instructions from ET Presidents in relevant jurisdictions.

The case of Naeem v Secretary of State for Justice highlights the concept of "disadvantage" within the definition of indirect discrimination. This refers to a provision, criterion, or practice (PCP) that, when applied, puts those sharing a protected characteristic at a particular disadvantage compared to others.