Discrimination 3
Overview of the Equality Act 2010
Contextual Background
The discussion begins with coverage of the foundational aspects of equality law in the UK.
It reflects on the social context influencing the development of these laws.
Covered previous impacts such as the Human Rights Act and the UK’s membership in the European Union on discrimination law.
Introduction to the Equality Act 2010
Implementation of the Equality Act was aimed at consolidating existing legislation.
The goal was to create a consistent, transparent, and strengthened equality law.
Implementation date: October 2010.
The Act enhances employers’ comprehension of their responsibilities regarding equality and empowers employees to challenge discrimination more effectively.
Focus of Upcoming Lectures:
Subsequent sessions will delve into the details of the Equality Act 2010, tracking its development and engaging in critical analysis.
Initial lectures will address who is protected under the Act and the basic framework outlining claims.
Employers and Employees:
The importance of understanding who can bring forward a claim under the Act, with a focus on the employment context.
A collaborative approach in the learning process, encouraging student interaction and queries.
Learning Objectives:
Understand protection for prospective, current, and ex-employees under the Equality Act 2010.
Recognize protections for those outside the immediate employment relationship.
Distinction between general employment protection and the specific protections afforded by the Equality Act.
Initial Readings and Cases
Suggested Sections of the Equality Act 2010:
Sections 39, 40, 141 and 108
Key Cases for Reference:
Serco Ltd v Lawson
Harper v Real Action
Annrostock v Jessame
Jurisdictional Issues under the Equality Act 2010
Under older legislation, individuals could bring claims to employment tribunals based on employment conducted in Great Britain.
The Equality Act 2010 did not explicitly state jurisdictional parameters, leading to litigation to define who can file claims.
Courts reference precedents from the Employment Rights Act 1996 to determine jurisdiction:
Established the test via Serco Ltd v Lawson: an individual must have a strong connection to Great Britain in relation to their employment.
Protections Offered under the Equality Act 2010
Broader Protection Scope:
The Equality Act 2010 affords broader coverage compared to the Employment Rights Act 1996.
Protects prospective employees from discrimination in the recruitment process, influencing arrangements, terms of offers, and selection criteria:
Arrangements: Discriminatory recruitment practices can yield claims.
Terms of Employment: Potential discrimination in job offers.
Selection for Employment: Discrimination in hiring decisions.
Definition of Employee under the Equality Act 2010
Section 39 Coverage:
Protections extend to individuals under a contract of service or apprenticeship, encompassing broader definitions and implications for discrimination claims.
Definition includes those who provide personal work under obligations, ensuring uninhibited coverage for more workers than the Employment Rights Act.
Contract Workers Protection
Section 40:
Includes contract workers who may be employed by one entity but work for another (end user).
Individuals can bring discrimination claims against both their employer and the end-user organization for discrimination they face.
The aim is to enhance social justice by affording broader rights to challenge discrimination beyond traditional employer-employee dynamics.
Specific References within the Equality Legislation
Partnerships:
Partnerships are protected from discriminatory actions.
Barristers and Advocates:
Self-employed barristers also protected against discrimination possibly faced in chambers.
Public Office Holders:
Includes protections for individuals in roles such as judges.
Armed Forces and Police:
Specific inclusion of armed forces members with conditions for claims; police are recognized as employees in light of the act.
Qualification Bodies and Training Organizations:
Responsible bodies cannot discriminate in awarding qualifications or training.
Trade Organizations:
Entities such as trade unions must comply with the non-discrimination mandates under the Equality Act.
Volunteers:
Protections exist under specific conditions, focusing on contractual obligations and personal service requirements.
Ex Employees and Their Rights
Emphasizes the rights of ex-employees to bring discrimination claims under the Equality Act for incidents occurring post-employment, particularly regarding references received from former employers.
Case Law Development:
Reese Harper v Royal Action established a precedent for ex-employees' claims under the Act for victimization, leading to Section 108's inclusion explicitly covering all forms of discrimination.
Further clarity through case law:
Rostock v Jessame affirmed that ex-employees could claim victimization, citing oversight in drafting.
Recap and Concluding Thoughts
Encourage students to consider the implications of broader definitions of employee under Section 39 compared to Employment Rights Act of 1996.
Review the recent changes to the Act that bring clarity to x-employee protections under Section 108.
Prepare for upcoming sessions covering protected characteristics under the Act and the prohibited conduct classifications such as discrimination and victimization.
Introduction to the Equality Act 2010 and Protected Characteristics
Overview of Session Objectives:
Explore the concept of protected characteristics within the Equality Act 2010.
Differentiate between individuals with protected status in a legal context including prospective employees, actual employees, and ex-employees.
Discuss peripheral categories of individuals who may also be protected.
Importance of Protected Characteristics:
Essential in determining whether an individual has a potential discrimination claim under the Equality Act.
Discrimination can only be claimed if it's based on a specific protected characteristic.
Understanding Protected Characteristics
Definition of Protected Characteristics:
Elements of identity protected under the equality legislation that prohibits discrimination.
Misconception: The legislation is not a blanket anti-discrimination measure; it is specific to particular elements of identity.
List of Protected Characteristics under Section 4 of the Equality Act 2010:
Age
Disability
Gender reassignment
Marriage and civil partnership
Pregnancy and maternity
Race
Religion or belief
Sex
Sexual orientation
Objective of the Session:
Gain an overview understanding of these protected characteristics.
Develop a focused understanding of disability as a protected characteristic.
Evaluate the argument for expanding protected characteristics, with specific reference to caste discrimination.
Learning Materials:
Reading for the Session:
NIESR report from 2010.
Caste report by the Equality and Human Rights Commission from 2014.
Case study: Chandhok versus Turkey (2014) - Employment Appeal Tribunal case.
Consult Section 97 of the Enterprise and Regulatory Reform Act (2013).
Recent consultation paper on caste discrimination.
Suggested Further Reading:
Disability within Expert HR and Harvey on Industrial Relations and Employment Law.
From the Historical Context of the Equality Act 2010
The Equality Act 2010 as a Single Act:
Consolidation of various earlier anti-discrimination laws into one piece of legislation.
Concerns about ensuring no hierarchy existed among different protected characteristics.
Alphabetical Order:
Characteristics are listed in alphabetical order in Section 4 to avoid any perceived prioritization.
Detailed Examination of Protected Characteristics
1. Sex as a Protected Characteristic
Definition under the Equality Act 2010 (Section 11):
Reference to individuals as either man or woman based on biological constraints.
Pairing with gender reassignment provisions allowing for transition recognition.
Challenges in Definition:
Traditional binary view has evolved, but the law currently largely reflects binary notions of sex.
Distinction between biological sex and gender identity, acknowledged in societal discussions.
2. Race as a Protected Characteristic
Definition of Race:
Includes color, nationality, ethnic, or national origins (Section 9 of Equality Act 2010).
Historical struggles in defining race due to its nature as a social construct.
Key Case: Mandler v. Darley (1983):
Discussed the link between religion and race within legal protections.
Highlighted complexities in distinguishing race from religious identity in legal frameworks.
3. Disability as a Protected Characteristic
Legal Definition Challenges:
Distinct from other protected characteristics due to a complex definition.
Past reliance on the medical model of disability (problematic) versus the social model of disability which emphasizes accommodation by society.
Definition Criteria from Disability Discrimination Act 1995 and Equality Act 2010:
Physical or mental impairment.
Substantial adverse effect on normal day-to-day activities.
Long-term effect (lasting 12 months or more).
Notable Changes in the Equality Act 2010:
Work now included within daily activities.
Automatic disabilities recognized under previous legislation.
test of disability comes from section 6 of the equality act- if they have physical or mental impairment - does not have to be registered with world health organization- has to have a substantial affect on normal day to day activities
constructive knowledge- if an employee is behaving in a way that suggests they may be experiencing a disability, the employer is expected to take action to identify and address the situation, ensuring appropriate accommodations are provided.
4. Gender Reassignment and Sexual Orientation
Gender Reassignment:
Recognized under the Equality Act; no longer requires medical treatment acknowledgment.
Sexual Orientation Protection:
Established through case law and legislation, with protections based on perception included.
5. Religion or Belief
Definition Inclusion:
Covers both religious and lack of religious beliefs under Section 10 (Equality Act 2010).
Implications of Freedom of Religion as per Article 9 of the European Convention on Human Rights.
6. Age as a Protected Characteristic
Age Discrimination Framework:
Ability to justify age discrimination if labor market dynamics demand it (e.g., retirement policies).
Discussion of Caste Discrimination
Definition:
Caste as a hereditary system of social stratification, often leading to discrimination based on descent.
Historical Context in UK Law:
Attempts to adapt and address caste-related discrimination within employment sectors.
Case example: Chandhok v. Turkey (2014) supported utilizing race protections for caste issues.
Government Action and Reactions:
Government consultation revealed evidence of caste discrimination but ultimately led to lack of action in codifying caste protections.
Discussion of the implications of not including caste within the broader race protections of the Equality Act 2010.
Conclusion of the Session
Summary of Learning Objectives:
Overview of core protected characteristics within the Equality Act 2010.
In-depth understanding of disability and legal definitions.
Critical evaluation of caste discrimination and potential for legal expansion.
Invitation for Discussion:
Students encouraged to reflect on content and participate in workshops for elaborative discussions.
Update on the definition of sex under the Equality Act 2010
The Supreme Court in the case of For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16 clarified that the terms "sex," "man," and "woman" under the Equality Act 2010 (EqA 2010) refer to biological sex rather than "certificated sex" as recognised under the Gender Recognition Act 2004 (GRA 2004). This interpretation means that individuals with a Gender Recognition Certificate (GRC) are not considered to fall within the definition of their acquired gender for the purposes of the EqA 2010. The court reasoned that this biological interpretation aligns with the legislative history and ensures the coherent application of the law, particularly in the context of sex-based rights and protections.
The court further emphasised that interpreting "sex" as biological sex avoids creating incoherent or heterogeneous groupings within the protected characteristic of sex. For example, provisions relating to pregnancy, maternity, and single-sex spaces under the EqA 2010 can only be understood in terms of biological sex. The court rejected the argument that "sex" could bear a variable meaning depending on the context, as this would undermine legal certainty and the practical application of the Act.
Additionally, the court highlighted that the EqA 2010 provides separate protections for gender reassignment as a distinct protected characteristic. This ensures that trans individuals, whether or not they hold a GRC, are protected from discrimination under the gender reassignment provisions of the Act. However, for the purposes of sex discrimination, the protected characteristic of sex is determined solely by biological sex.
what do we mean by the term caste
social hierarchy that you are born into and cannot get out of. often found in south asian communities.
Consider the Niesr report 2010 and summarise the key findings in relation to caste
Explain the implications of section 97 of the enterprise and regulatory reform act 2013 for the development of caste discrimination in the UK
Consider the EHRC report 2014 on caste discrimination and summarise the key findings in relation to caste
What are the implications of the Chandhok v Tirkey case for the development of a concept of caste discrimination in the UK
What are the consequences of 2017 government consultation on caste
Give 3 arguments against introducing caste discrimination into the equality act 2010
Give 3 arguments in favour of introducing caste discrimination into the equality act 2010
To what extent is it possible or prudent to have a concept of caste discrimination included within the protected characteristics
critically evalute w