Development of Indirect Discrimination in the UK

In the first part of the brief the brief investigates the development of indirect discrimination in the UK and the EC. It further discusses the various forms of legislation that was enacted to combat indirect discrimination. The first part of the brief concludes with a short discussion of the new proposed Equality Bill that provides for indirect discrimination. The second part of the brief investigates specific factual situations and provides advice with reference to case law, legislation and books on the subject.

Introduction

Indirect discrimination is a complex concept. [1] The Sex Discrimination Act 1975, Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 all contain definitions of indirect discrimination. [2]

The Race Relations Act 1976 contains two different definitions depending on whether the discriminatory treatment is on grounds of colour or nationality on the one hand or on grounds of race, ethnic origins or national origins on the other. [3]

The legislation dealing with indirect discrimination is spread over various pieces of legislation which makes it a complex area of the law.

Development of Concept of Indirect Discrimination

United Kingdom and European Union

According to Connolly [4] the law in relation to indirect discrimination is less certain for imposing liability for indirect discrimination. Indirect discrimination is concerned with the situation when one group is worse off than another and therefore concerned with group rights. [5] It does not address the issue what the status of such rights are. [6]

The US case Griggs [7] is universally known as the decisive case where the concept of indirect discrimination was recognised by the Courts. The court also adopted the disparate impact doctrine. The case dealt with racial discrimination and although the rule complained about was formally neutral in relation to race, the court held that even neutral rules cannot be maintained if they operate to freeze the status quo of prior discriminatory practices.

The first definition of indirect discrimination is found in the UK Sex Discrimination Act (SDA) 1975. [8] Tobler [9] argues that the US disparate impact doctrine led to the adoption of the legal definition of indirect discrimination.

The Government adopted the Race Relations Act 1976 and included in it a formula defining indirect discrimination. [10]

When the two limbed USA theory of indirect discrimination was imported into the UK legislation, more detail was added. Seven elements were added to the UK legislation. This meant that the UK legislation was more rigid and tension developed between the narrow UK and broad ECJ definitions. [11]

The first dispute arose in the judgement of Enderby [12] where the ECJ held that where statistics show that one group earns significantly less than another group, then article 119 of the EC Treaty provides that the onus to prove that there is no discrimination shifts to the employer. The case dealt with pay discrimination between men and women.

The next dispute arose in the matter of Falkirk [13] which dealt with sex discrimination. The employer advertised that although supervisory experience was not necessary but desirable. Three female complainants made unsuccessful applications for the post and alleged that the criterion amounts to unlawful sex discrimination as a lesser potion of women had such experience. Lord Johnston held that it amounted to indirect sex discrimination. [14]

A series of directives forced the broader definition into domestic law but only where the EC had competence to issue directives for. [15] The Sex Discrimination Act was amended to include a broader definition but only in employment matters. [16] The Race Relations Act was also amended in all fields but excluded from the broad definition was discrimination on the ground of colour or nationality. [17]

The Employment Equality (Religion or Belief) Regulations and the Employment Equality (Sexual Orientation) Regulations (both in 2003) contained the new definition in from the beginning. [18]

Connolly [19] argues that the definition of discrimination in the Race Relations Act was amended to comply with EC Directive 2000/43/EC. [20] The amended version moved away from the narrow definition to a broader more liberal approach. [21]

Connolly argues that the courts vacillated between the narrow and the broad more purposive approach. [22] The Employment Appeal Tribunal (EAT) initially gave the Act a broad and purposive interpretation in Clarke [23] where the Tribunal held that it was incorrect to use the narrow interpretation.

The EAT held in Lockwood [24] that a requirement or condition applied to her and the matter was referred back to the tribunal for hearing as to justification by the employer. The employer did not want the applicant to work from home or part time when she requested it to consider it. A broad purposive interpretation was followed by the EAT.

The Court of Appeal held in Perera [25] that the requirement that a candidate have a good command of English, experience in the UK and a British National was an advantage did not place an absolute bar on some groups from qualifying as a candidate. Connolly [26] argues that this case created a loophole for employers to get away with indirect discrimination by allowing the employer to apply a mere preference that still disadvantages a person but not absolutely barring such person.

The Court of Appeal followed the Perera [27] judgement in Meer [28] . Connolly [29] rightly argues that the loopholes allow an employer to have preferences that will absolutely bar some groups from qualifying.

The EC Directive is only enforceable against the British Government and not a private person where there is a conflict between the directive and the domestic law. [30] The Treaty of Rome in Article 5 requires the domestic courts to interpret domestic law in light of the wording and purposes of the Directive. [31]

The Enderby [32] judgement was given by the ECJ and has binding authority on the domestic courts. [33] Connolly [34] argues convincingly that the English domestic law will be riddled with anomalies as to the interpretation of “requirement or condition” contained in the legislation that it will have to change.

Equality Bill

In April 2009, the UK Parliament introduced the Equality Bill. The Bill provides for protected characteristics namely age, disability, gender reassignment, marriage and civil partnership, pregnancy, race, religion or belief, sex or sexual orientation. [35]

The Bill also provides for indirect discrimination in Section 19 thereof. [36] The protected characteristics are set out in section 19(3) and are the same ones as those contained in Sections 4 to 12. [37]

It is with relief that one can note that the Government has decided to implement a universal Act to deal with Equality that also provides for indirect discrimination.

Question 2(a)

The Employment Equality (Sex Discrimination) Regulations 2005 which came into force on 1 October 2005 amend the Sex Discrimination Act 1975 by inserting into the Act Section 4A. Section 4A of the Act provides that a person subjects a woman to harassment if on the ground of her sex he engages in unwanted conduct that violates her dignity or create an intimidating hostile, degrading, humiliating or offensive environment for her or if he engages in any form of unwanted or unwanted non-verbal or physical conduct of a sexual nature that has the purpose or the effect of violating her dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

Section 4A (2) of the amendment provides that conduct shall be regarded to have the effects listed in paragraphs (i) and (ii) of Subsection 4A (1) (a) and (b) if, having regard to all the circumstances and more importantly, the perception of the woman who is subjected to the treatment that it should be reasonably considered to have the negative effect. [38]

The test to ascertain whether sexual harassment is present is partly objective and partly subjective the Court will objectively consider the circumstances that caused the complaint and will subjectively ascertain the woman’s perceptions as to whether she perceived the treatment as sexual harassment.

It is notable that Section 4A only refers to a male person perpetrating the act of sexual harassment on a female person. However Section 2 (1) of the Sex Discrimination Act 1975 provides that Section 4A applies equally to men and women. [39]

In applying the legal principles contained in Section 4A, the surrounding circumstances show that the photographs are sexually explicit and it is being passed around by her male colleagues. Secondly the facts clearly state that Jenny finds the photographs highly offensive and complained about them to her manager. The fact that the photographs were stuck to her locker has further created a hostile and degrading environment for Jenny.

Section 4A of the Sex Discrimination Act has clearly been breached and Jenny will be successful with a claim for compensation against her employer in the employment tribunal.

Question 2(b)

David’s complaint will falls within Section 1(1) of the Sex Discrimination Act 1975.

The new Section 3 of the Sex Discrimination Act also finds application to David’s situation. Section 3 provides that indirect discrimination will occur when the employer applies to her a provision criterion or practice that applies equally to men and women but has the effect of putting women at a particular disadvantage when compared to men and the act actually puts her to that disadvantage and it cannot be shown to be proportionate means of achieving a legitimate aim. [40]

A case which deals with the issue under discussion is the matter of Department for Work and Pensions. [41] In this case the Department issued a dress code requiring all male employees to wear a collar and tie to work.

Mr Thompson complained that it was discriminatory against men as women were not subjected to a prescribed dress code. The Employment Tribunal held in favour of the applicant and the respondent appealed. At the time of the hearing there were approximately 6,950 cases awaiting the outcome of the appeal. [42]

The tribunal had to consider three issues namely, whether the treatment of the applicant was less favourable than that of his female colleagues and if the answer is yes, was the less favourable treatment based on the ground of his sex and lastly, had he been subjected to a detriment. [43]

In Smith [44] the court said that to establish discrimination it was necessary to show that the treatment accorded one sex was less favourable than that accorded the other. In other words, David must show that the males at work were being treated less favourably than the females.

The court in Thompson [45] held that an even handed approach did not necessarily mean that members of one sex are treated less favourably than the other simply because they are required to wear clothing of a particular kind but members of the other is not. The court upheld the appeal but referred the matter to the tribunal for a re-hearing as it was required that the tribunal needs to make a finding as to whether the only manner in which men could dress smartly is by wearing a collar and tie.

David should be able to show that there are other clothes that males can wear than a collar and tie. The directive from head office is that all staff should dress smartly and the manager is misinformed by requiring all males to wear a tie.

Question 2(c)

Section 49(2) of the Race Relations Act 1976 [46] applies to Parvinder. The section applies to employers and provides that it is unlawful for a person to discriminate against an employee in the way he affords him access to opportunities for promotion, transfer or other benefits in his employment. Section 1 of the Act that one person discriminates against another for the purposes of the provision of the Act if he treats the employee less favourably on racial grounds. Section 4A and 5 provide for exceptions for genuine occupational requirement and genuine occupational qualifications. [47]

The facts do not disclose whether Sections 4A and 5 find application or not. In the absence of such facts, it will be assumed that these two sections do not apply.

Once the employee has shown that facts from which it is presumed that there has been direct or indirect racial discrimination, the burden of proof shifts from the applicant to the employer to show genuine occupational requirements. [48]

In Mandla [49] the House of Lords held that Sihks were a distinct racial group. Parvinda will therefore succeed in showing that she is a distinct racial group and the Act applies to her.

In Shamoon [50] the House of Lords held that the test was objective and the question to be answered was whether a reasonable worker would consider that he or she suffered a detriment.

When the facts are objectively considered, Parvinda will be able to show that her employer has been discriminating against her as a result of her race and the burden of proving the opposite will shift to her employer to show that one of the exceptions applies.

Question 2(d)

The facts disclose possible discrimination against Fatima as a result of her religion and not as a result of her race. The Employment Equality (Religion or Belief) Regulations 2003 applies to her position. It determines that unfavourable treatment on grounds of an individual’s religion or belief is unlawful. [51] Harassment is separate form of discrimination within each area of discrimination which means that harassment of an employee as a result of her religion will also be unlawful. [52]

Religion or belief is defined as any religion, religious belief or similar philosophical belief. [53]

Daniels [54] says that employers have little knowledge of different religions. She advises that employers should ensure that anti harassment policies and procedures cover harassment on grounds of religion and ensure that they drawn to the attention of all staff.

In Fatima’s case the head teacher has the duty to ensure that all employees and students are aware of the anti harassment policy. The school should further ensure that the policy is followed by students and staff and if there are any transgressions of the policy appropriate action should be taken (including training) to ensure that the transgression is not repeated.

Question 2(e)

To advise Phil properly one will have to consider the Disability Discrimination Act (DDA) 1995 (c.50). [55] Depression is also one of the types of mental health condition that can lead to a disability. [56]

Section 4(2)(c) of the DDA provides that it is unlawful for an employer to discriminate against a disabled person whom he employs by refusing to afford him any opportunity for promotion. [57]

Section 5(1)(a) of the DDA describes the meaning of discrimination as, inter alia, he treats the employee less favourably than others due to the disability and he cannot show the treatment is justified. [58]

A case in point is the judgement of the Court of Appeal in Beard. [59] The facts in the case were shortly that the claimant suffered from depression after her immediate line manager changed her position in to that of Administrative Assistant with a reduction in her pay. Despite the claimant’s objections she was not reinstated in her previous position and she went on sick leave and never returned to work. [60]

The court held that justification must be objectively viewed. [61] The court confirmed the finding by the Employment Appeal Tribunal and held that there was no adequate investigation into the circumstances. [62]

Phil should be successful with his claim against his employer as it does not appear that the employer investigated the circumstances properly.

Question 2(f)

The issue that requires investigation is whether Annette will be able to show that the DDA to show that her employer is discriminating against her on one or more of the grounds contained in Section 4 or Section 6 of the DDA.

Section 4(2)(d) of the DDA makes it unlawful for an employer to discriminate against a disabled employee by dismissing him or subjecting him to any other detriment. Section 6(1) of the DDA requires an employer to take steps to accommodate a disabled employee. [63] One of the steps that the DDA provides as an example is altering the working person’s hours. [64]

In Coleman [65] the Court of Justice of the European Communities (EUEJC) was asked to determine whether the claimant could base her claim on the DDA based on the ground that she was subjected to less favourable treatment connected with her son’s disability. [66]

The court held that the provisions of Directive 2000/78 EC [67] (to combat discrimination) are to combat all forms of discrimination on grounds of disability. [68] The court held that where an employer treats an employee who is not himself disabled less favourable than other employees in comparable circumstances and the treatment is based on the disability of his child such treatment will be contrary to the prohibition of direct discrimination as laid down in article 2(2)(a) of the Directive. [69]

My advice to Annette will be that she will be successful with a claim for direct discrimination as she will also be covered by the DDA pursuant to the Coleman [70] judgement.

Bibliography

Books

Connolly M., Townshend-Smith on Discrimination Law: Text, Cases and Materials (2004) Cavendish Publishing

Disability Discrimination Act 1995(c. 50) available at as at 7 January 2010

Daniels K., Macdonald L., Equality, Diversity and Discrimination: A Student Text (2005) Chartered Institute of Personnel and Development

Smith I., Thomas G., Smith & Wood’s Employment Law (9 Edition) (2008) Oxford University Press P330

Tobler C., Indirect Discrimination – A Case Study in the Development of the Legal Concept of Indirect Discrimination under EC Law (2005) Intersentia

Workplace Law Group, Workplace Law Handbook 2008, Essential guidance for workplace managers on law, regulation, policy and practice (2008) Workplace Law Network P235

Cases

Clarke v Eley (IMI) Kynoch Ltd [1982] IRLR 482

Coleman v Law & Another [2008] EUECJ C-303/06 available at as at 7 January 2010

Department for Work and Pensions v Thompson [2003] UKEAT 0254_03_2711, [2004] IRLR 348, UKEAT/0254/03, UKEAT/0254/03/MAA available at as at 6 January 2010

Enderby v Frenchay HA Case number c-127/92 available at as at 4 January 2010

Falkirk Council and others v Whyte and others [1997] IRLR 560

Griggs v Duke Power Co 401 US 424 (1971) also available at as at 4 January 2010

H M Prison Service v Beart [2003] ICR 1068, [2003] IRLR 238, [2003] EWCA Civ 119 available at as at 7 January 2010

Lockwood v Crawley Warren Group Pty Ltd Appeal No. EAT1176/99 available at as at 5 January 2010

Mandla v Dowell Lee [1983] 2 AC 548, [1983] 1 All ER 1062, [1983] 2 WLR 620, [1983] IC R 385, [1983] IRLR 209, (46 MLR 759, 100 LQR 120, [1984] CLJ 219) available at as at 6 January 2010

Meer v Tower Hamlets London Borough Council 1988] EWCA Civ 10, [1988] IRLR 399 available at as at 5 January 2010

Perera v Civil Service Commission (No 2) [1983] ICR 428

Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 available at as at 6 January 2010

Smith v Safeway Plc [1996] ICR 868