British Labour Law - Equality - Discrimination

Discrimination

UK and EU law divide discrimination into direct and indirect forms. Direct discrimination means treating a person of a protected trait less favourably than a comparable person who does not share that trait. This is an objective test, so that it is irrelevant what motive the employer had. Even if it was “positive” discrimination, in the sense that the purpose was to help an underprivileged group, this is still unlawful. The claimant's trait merely has to be the reason for the unfavourable treatment. An appropriate comparator is one who is the same in all respects except for the relevant trait, which is claimed as the ground for discrimination. For instance in Shamoon v Chief Constable of the Royal Ulster Constabulary a chief inspector claimed that she was dismissed because the police force was sexist, and pointed to male chief inspectors who had not been treated unfavourably. The House of Lords overturned a Tribunal finding of sex discrimination because Ms Shamoon had had complaints made about her appraisal duties, and her chosen comparators had none. Generally there is, however, no need to point to an actual comparator, so a claimant can allege they were treated less favourably than a hypothetical person who does not share their trait would have been. The burden of proof is explicitly regulated so that claimants merely need to show a set of facts from which a reasonable tribunal could conclude there was discrimination, and need not show an intention to discriminate. Because the law aims to eliminate the mindset and culture of discrimination, it is irrelevant whether the person who was targeted was themselves a person with a protected characteristic, so that people who associate with or are perceived to possess a protected characteristic are protected too. In Coleman v Attridge Law a lady with a disabled child was abused by her employer for taking time off to care for the child. Even though Ms Coleman was not disabled, she could claim disability discrimination. And in English v Sanderson Blinds Ltd, a man who was from Brighton and went to boarding school was teased for being gay. Even though he was married with children, he successfully claimed discrimination because of sexuality. An instruction by an employer to discriminate against customers or anyone else also violates the law.

Originally a sub-category of direct discrimination, harassment is now an independent tort which requires no comparator. The Protection from Harassment Act 1997, and now the Equality Act 2010 sections 26 and 40, define harassment as where a person's dignity is violated, or the person is subject to an intimidating, hostile, degrading, humiliating or offensive environment. An employer will be liable for its own conduct, but also conduct of employees, or customers if this happens on 2 or more occasions and the employer could be reasonably expected to have intervened. In a straightforwardly unpleasant case, Majrowski v Guy's and St Thomas’s NHS Trust a gay man was ostracised and bossed about by his supervisor from the very start of his work as a clinical audit co-ordinator. The House of Lords held the laws create a statutory tort, for which (unless a statute says otherwise) an employer is automatically vicariously liable. Under the Equality Act 2010 section 27, an employer must also ensure that once a complaint is brought by a worker, even if it proves ultimately to be unfounded, that worker should not be victimised. This means the worker should not be subject to anything that a reasonable person would perceive as deterimental. In St Helen’s MBC v Derbyshire the House of Lords held a council victimised female staff who were pursuing an equal pay claim when it sent letters warning (without much factual basis) that if the claim went ahead, the council would be forced to cut school dinners and make redundancies. A reasonable person would have regarded this as a detriment. By contrast, in Chief Constable of West Yorkshire Police v Khan, where a sergeant with a pending race discrimination claim was denied a reference by the employer that he was suing, it was held this could not be considered victimisation because the Constabulary was only seeking to protect its legitimate interests and not prejudice its own future case in the discrimination hearings.

"Indirect" discrimination means an employer, without an objective justification, applies a neutral rule to all employees, but it puts one group at a particular disadvantage. The particular disadvantage must be related to the claimant's protected characteristic specifically, and not to a non-essential feature of it. In Ladele v Islington LBC a woman who refused to register gay civil partners, because she said her Christianity made her conclude homosexuality was wrong, was dismissed for not carrying out her duties. And in Eweida v British Airways plc a lady who wished to wear a cross claimed that BA's instruction to remove it was indirectly discriminatory against Christians. Both claims failed because it was held that neither antipathy towards homosexuals, nor crucifix jewellery are essential parts of the Christian religion. The question of particular disadvantage also typically relies on evidence of statistical impact between groups. For instance in Bilka-Kaufhaus GmbH v Weber von Hartz an employer set up pensions only for full-time workers, and not for part-time workers. But 72 per cent of part-time workers were women. So Frau Weber von Hartz was able to show that this rule put her, and women generally, at a particular disadvantage, and it was up to the employer to show there was an objective justification. Statistics might be presented in a misleading way (e.g. a measure could affect twice as many women as men, but that is only because there is 2 women and 1 man affected in a workforce of 100). Accordingly the correct approach is to show how many people in the affected workforce group are put at an advantage, and then if there is a statistically significant number of people with a protected characteristic who are not advantaged, there must be an objective justification for the practice. In R (Seymour-Smith) v Secretary of State for Employment the UK government's former rules on unfair dismissal were alleged to be discriminatory. Between 1985 and 1999, the government had made the law so that people had to work for 2 years before they qualified for unfair dismissal (as opposed to 1 year presently), and this meant that there was a 4 to 8 per cent disparity between the number of men and women who qualified on dismissal for a tribunal claim. Following ECJ guidance, the House of Lords held by a majority that this was a large enough disparity in coverage, which required justification by the government.

• TFEU art 157, equal pay and types of comparator