However, critics of the Act argue that there is little new here and that an opportunity has been missed to take greater steps to protect employees.
Certainly, some of the more controversial provisions of the Act, such as combined discrimination, gender reporting requirements and positive discrimination in recruitment and promotion languish in the "not in force" basket with no clear indication as to when they might be implemented in the future.
Diversity and inclusion at work:
Why discomfort is key to embracing diversity
Rethinking workplace diversity
Diversity and inclusion: stretching both ends of the talent pipeline
In this series of articles for employers, we consider the key changes for employers and their practical impact (if any), as well as reviewing the provisions of the Act that may (or may not) be implemented at a later date.
In this first article, we look at the harmonisation of the different existing strands of discrimination and new definitions of direct discrimination, indirect discrimination, victimisation and harassment.
The core of the Act brings together for the first time the various characteristics already protected from unlawful discrimination by introducing the concept of ‘protected characteristics’. There are nine in total, being: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Although there have been very few changes made to the definitions of the individual protected characteristics, it is worth noting that:
- The definition of race is stated now so as to be non-exhaustive, including (but not limited to) colour, nationality, ethnic or national origin; and
- Gender reassignment no longer requires that a person be under medical supervision - only that they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or ‘other attributes’ of sex.
For employers the new language provides that there will be direct discrimination against a worker where, ‘because of’ a protected characteristic you treat them less favourably than you treat or would treat others.
This differs from the old definition by virtue of the words ‘because of’ (instead of the old terminology ‘on grounds of’). This is intended to significantly widen the scope of the law by allowing claims to be brought based on association (ie where the discrimination is because a person is associated with someone else who has a protected characteristic) or perception (ie where an individual is treated less favourably because of another’s perception of their having a protected characteristic).
In practice these extended forms of discrimination have already been held unlawful under the old legislation (for example, discrimination against a woman because of her son’s disability or against a man assumed to be gay by reason only of his having attended public school and lived in Brighton).
The codification of these provisions into statute does make this clearer though and will undoubtedly lead to a greater awareness of these rights among employees and dare we note a possible increase in claims of this nature being brought against both perpetrators and employers alike?
The Act also sets out a single definition of indirect discrimination that is applicable to each of the protected characteristics (except pregnancy and maternity). Under the old law there was no protection against indirect discrimination on grounds of disability or gender reassignment.
The Act changes this and, by doing so, remedies a technical problem arising from the case of Mayor and Burgesses of the London Borough of Lewisham vs Malcolm, which narrowed the test for ‘disability related’ discrimination to such an extent that it had became virtually impossible to show that such discrimination had occurred.
In summary, an employer will discriminate against a worker if it applies to them a ‘provision, criterion or practice’ that is discriminatory in relation to a relevant protected characteristic. This could relate to any requirement (for example, hours worked) although issues relating to pay between men and women would still be covered instead by equal pay law.
A provision criterion or practice (for example, a contractual term) will be discriminatory if: you apply, or would apply, it to persons with whom the worker does not share the protected characteristic (if it is just the person in question that could be direct discrimination);it puts, or would put, persons in the same group as the worker (ie those who share the characteristic, for example, race) at a particular disadvantage when compared to those other people; it puts, or would put, the actual worker at that disadvantage; and the business cannot show it to be a ‘proportionate means of achieving a legitimate aim’
This would mean, for example, that forcing all workers to work late every night could be indirectly discriminatory against a woman if statistically it can be shown women bear the larger burden of childcare (as they still do), the woman in question cannot work late for that reason and you cannot justify it.
The expression ‘proportionate means of achieving a legitimate aim’ is the new language for objective justification that has been entering law in this area recently. It is a tough test and may involve considering and eliminating other alternative measures which would be less discriminatory before imposing rules.
‘Victimisation’ is where the worker is essentially treated badly for raising a grievance or claim relating to a protected characteristic (though it goes further than that). This was in the old law though the Act includes a new definition of victimisation.
This provides that an employer would victimise a worker if it subjects them to a ‘detriment’ because they have done a protected act. It also covers such treatment where the employer only believes that the worker has done, or may do, a protected act. A protected act would include bringing proceedings under the Act, giving evidence or information in connection with proceedings under the Act, doing any other thing for the purposes of or in connection with the Act, making an allegation (whether or not express) that the employer or another person has contravened this Act or making a ‘relevant pay disclosure’ for the purposes of ascertaining if discrimination is occurring in relation to pay).
As the law stands at present, an individual claiming victimisation must identify either an actual or hypothetical comparator. This has been removed by the Act but that is unlikely to be of any significant importance in practice.
Harassment in effect means what it says and where it is based on discrimination was covered by the old laws (it may of course also be covered by the Protection from Harassment legislation). The Act again harmonises the definition of harassment, which is applicable to each of protected characteristics (save pregnancy, maternity and marriage and civil partnerships).
Harassment will now take place if a person:
- Engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of ‘violating another person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them’ (the general rule);
- Engages in unwanted conduct of a sexual nature which has the purpose or effect of violating the other’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (the specific sexual harassment rule); or
- Engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex which amounts to ‘harassment’ and because of the subjects rejection of or submission to that conduct, treats them less favourably that another person who had not rejected or submitted to that conduct (the less favourable treatment rule).
Further protection from third party harassment is also detailed. This means that where any third party (for example, anyone who is not an employer or any of its employees) harasses a person on at least three or more occasions in the course of that person’s employment and the employer failed to take such steps as would have been reasonably practicable to prevent this, the employer could be liable. Notably it need not be the same third party on each occasion of harassment.
This essentially repeats the old rule in the Sex Discrimination Act – which was often forgotten, but has extended it now to other forms of discrimination, so beware.
Again the law on harassment is not new but restated to be simpler (believe it or not). The various existing definitions of harassment are also expanded by the Act which, as with direct discrimination, now extends to cover harassment based on association and perception.
The Act also significantly widens the scope of the protection from third party harassment (which was previously restricted to claims brought under the Sex Discrimination Act 1975). The effect of this must not be underestimated, particularly in sectors where staff are routinely in contact with members of the public.
For most purposes the law has simply been codified and many employers might be forgiven (by others, though not the tribunals) for continuing without making major changes to policies or behaviour.
With employment law, though, as always, it is the subtle changes that will catch out the unwary and for some employers issues such as ‘associative discrimination’, ‘perceptive discrimination’ or indeed responsibility for the acts of third parties may come as a total shock.
As before the new law allows claims directly against the individuals committing the offences but in practice claims will always be aimed primarily at employers including where their failure has only been to adopt and enforce appropriate policies. As before there is no cap on the awards that could be made with discrimination claims. This is then a very good time to dust off the handbook, get a strong coffee and do some serious thinking.
Darren Clayton is a partner at Doyle Clayton Employment Solicitors
