Protected characteristics and direct discrimination

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Shelley, a 58-year-old marketing manager at a growing tech company, was recently refused a place on a specialized training course that younger employees attended. Her employer stated that older workers might not adapt quickly to the updated software. Shelley believes that this decision amounts to direct discrimination based on her age. She contends that but for her age, she would have been accepted. She is considering a legal claim under the Equality Act 2010.


Which of the following is the single best statement regarding direct discrimination under the Equality Act 2010 in Shelley's situation?

Introduction

The Equality Act 2010 establishes a comprehensive legal framework in the United Kingdom to prevent discrimination and ensure equal treatment across various domains. It defines specific protected characteristics and prohibits direct discrimination, ensuring individuals are not treated less favorably due to certain attributes. Understanding these principles is essential for applying the Act effectively and addressing its legal implications.

Protected Characteristics

The Equality Act 2010 specifies nine protected characteristics, providing individuals with legal protection against discrimination based on these attributes. They are:

  1. Age: Protects people from unfair treatment due to their age, whether they are considered too young for a managerial role or too old to learn new technology.

  2. Disability: Covers physical or mental impairments that have a substantial and long-term adverse effect on one's ability to carry out normal day-to-day activities. For example, an employee with mobility issues requiring reasonable adjustments at work.

  3. Gender Reassignment: Applies to individuals proposing to undergo, undergoing, or having completed a process to reassign their gender. A person transitioning should not face barriers in accessing services or employment opportunities.

  4. Marriage and Civil Partnership: Relates to individuals who are married or in a civil partnership. Denying benefits to employees based on their marital status would be discriminatory under the Act.

  5. Pregnancy and Maternity: Protects women during pregnancy and for 26 weeks after childbirth, ensuring they are not treated unfavorably because of their condition. For instance, a pregnant employee should not be overlooked for advancement due to her pregnancy.

  6. Race: Encompasses color, nationality, and ethnic or national origins. Discrimination based on any of these aspects, such as refusing service to someone because of their accent, is prohibited.

  7. Religion or Belief: Includes any religion or philosophical belief, as well as lack of belief. This could involve accommodating religious dress codes at work or allowing time off for religious observances.

  8. Sex: Ensures equal treatment between men and women. Offering different pay rates to male and female employees performing the same job is unlawful.

  9. Sexual Orientation: Guards against discrimination based on a person's attraction towards the same sex, opposite sex, or both. A landlord refusing to rent to a couple because they are gay would be discriminating on this basis.

Recognizing these protected characteristics is important for identifying and addressing discrimination in employment, education, housing, and the provision of goods and services.

Direct Discrimination

Under Section 13 of the Equality Act 2010, direct discrimination occurs when someone is treated less favorably than another person in a similar situation because of a protected characteristic. This concept can be broken down into three essential elements:

  1. Comparator: The individual alleging discrimination must compare their treatment with that of someone without the protected characteristic in comparable circumstances. Consider two employees with the same qualifications and experience, but only one is selected for redundancy due to their age.

  2. Less Favorable Treatment: The treatment received must be objectively less favorable. This means assessing the situation from the viewpoint of a reasonable person. For instance, being passed over for a promotion solely because of one's race constitutes less favorable treatment.

  3. Causation: There must be a direct link between the unfavorable treatment and the protected characteristic. The characteristic must be the reason, or part of the reason, for the treatment.

The "But For" Test

To determine whether direct discrimination has occurred, courts often use the "but for" test: Would the person have received the same treatment but for their protected characteristic? If the answer is no, discrimination is likely.

Consider the case of James v Eastleigh Borough Council [1990]. Mr. James was charged for pool entry while his wife was not, due to a policy granting free entry to pensionable-age individuals. Since men and women had different pension ages at that time, the policy resulted in gender-based discrimination. The House of Lords held that but for his sex, Mr. James would have received free entry.

Discrimination by Perception and Association

Direct discrimination isn't limited to one's own protected characteristics. It can also arise through:

  • Perceived Characteristic: Discrimination based on the belief that someone possesses a protected characteristic, whether or not it is accurate. For example, an employer refusing to hire someone they mistakenly believe is of a particular religion.

  • Association: Discrimination due to a person's association with someone who has a protected characteristic. In Coleman v Attridge Law [2008], Ms. Coleman faced unfavorable treatment at work because she was the primary caregiver for her disabled son. The court held that discrimination by association is prohibited under the Equality Act.

Exceptions to Direct Discrimination

While direct discrimination is generally unlawful, the Equality Act 2010 outlines specific exceptions where differential treatment may be permissible:

  1. Occupational Requirements: In certain situations, a job may require a person to have a specific protected characteristic. This is known as a Genuine Occupational Requirement (GOR). For example, casting an actor for a historical figure of a specific race or gender, or employing only female staff in a women's shelter for privacy and safety reasons.

  2. Age-Based Justification: Unlike other protected characteristics, discrimination based on age can sometimes be justified if it serves a legitimate aim and the means of achieving it are appropriate and necessary. In Seldon v Clarkson Wright and Jakes [2012], the Supreme Court considered whether a law firm's mandatory retirement age was justified to support workforce planning and to leave opportunities for younger solicitors.

  3. Positive Action: Employers and service providers can take positive action to alleviate disadvantages experienced by people who share a protected characteristic. This might include targeted training programs to encourage participation from underrepresented groups, such as women in engineering. It's important that such measures are proportionate and aimed at addressing specific needs.

Complex Scenarios and Intersectionality

Real-life discrimination cases often involve complicated layers, where multiple protected characteristics combine. This intersectionality means an individual may face discrimination on more than one ground simultaneously.

For example, consider a Muslim woman who is told she cannot wear her hijab at work due to a blanket "no headwear" policy. This situation potentially involves discrimination based on both religion or belief and sex, as the policy disproportionately affects Muslim women.

Another scenario could involve a Black employee with a disability who experiences discrimination that is not solely based on race or disability but a combination of both. The Equality Act recognizes that discrimination can be layered, and it's important to consider all relevant characteristics when assessing such cases.

Legal Tests and Defenses

When alleging direct discrimination, the claimant must first establish a prima facie case, demonstrating that the unfavorable treatment was because of a protected characteristic. Once established, the burden of proof shifts to the defendant to show that the treatment was lawful.

Common defenses include:

  • Occupational Requirement: Arguing that the protected characteristic is essential for the job. For instance, specifying that only male actors can audition for the role of King Lear due to authenticity requirements.

  • Legitimate Aim and Proportionality: Showing that the discriminatory act pursues a legitimate aim and is a proportionate means of achieving it. For example, setting a minimum age for pilots to ensure safety may be considered a legitimate aim.

It's important to note that for most protected characteristics, direct discrimination cannot be justified. Age is the primary exception, where justification is possible if the criteria are met.

Practical Application

A thorough understanding of protected characteristics and direct discrimination is necessary when analyzing legal scenarios. Core competencies include:

  1. Identifying Protected Characteristics: Recognizing when discrimination relates to one or multiple protected characteristics, especially in complex situations.

  2. Applying the Direct Discrimination Test: Systematically using the three elements—comparator, less favorable treatment, and causation—to determine if direct discrimination has occurred.

  3. Evaluating Exceptions and Justifications: Assessing whether any exceptions apply, such as occupational requirements or legitimate aims, and whether these justifications are proportionate.

  4. Differentiating Between Types of Discrimination: Distinguishing direct discrimination from indirect discrimination, harassment, and victimization under the Equality Act 2010.

  5. Interpreting Case Law: Understanding how judicial decisions, both from UK courts and the European Court of Justice, have shaped the interpretation of the Act.

By thoroughly understanding these areas, one can effectively handle cases involving discrimination and apply the Equality Act 2010 accurately.

Conclusion

The interconnections of protected characteristics under the Equality Act 2010 reveal the challenge of preventing discrimination in diverse societal contexts. For instance, cases involving overlap, such as a policy that disproportionately affects older workers of a particular ethnicity, illustrate how multiple protected characteristics can combine to create unique discrimination scenarios. Key principles like the "but for" test and the necessity of a comparator are central when assessing direct discrimination claims. Understanding how exceptions, such as genuine occupational requirements and age-based justifications, operate within this framework is essential. Analyzing each component—from causation to potential defenses—is necessary for applying the Act's provisions accurately. Landmark cases, including James v Eastleigh Borough Council and Coleman v Attridge Law, demonstrate how judicial interpretation influences the practical enforcement of these principles.

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