Discrimination Legislation in the Equality Act

This essay analyses the new legislation on the anti discrimination law brought about by the Conservative government under the Equality Act 2010. To this end, it points out the need for bringing changes in the existing anti discrimination legislation. It is followed by the discussion of criticism from business community who believe that the new legislation poses a threat to the growth of business as the employers are vulnerable at the comparative rights of employees, who could drag them to tribunal for the breach of anti discrimination legislation. The general and vague definition of the discrimination, according to them, is likely to promote litigation and adversely affect the business environment by increasing the cost of conducting businesses. In their opinion, the new legislation protects the discrimination by association which is vague for employer and could put him into difficulty when sued before the tribunal. [1]

The Equality Act 2010 is promulgated with the view that it would remove social and economic disparities amongst members of the British society. It provides certain protected characteristics that could be the cause of discrimination. These are described as age, [2] disability, [3] gender reassignment, [4] marriage and civil partnership, [5] pregnancy and maternity, [6] race, [7] religion or belief, [8] sex and sexual orientation. [9] It further classifies the discrimination as direct discrimination, [10] combined discrimination: dual characteristics, [11] discrimination arising from disability, [12] gender reassignment: case of absence from work, [13] pregnancy and maternity discrimination: non-work cases, [14] pregnancy and maternity discrimination: work cases [15] and it specifically includes indirect discrimination. [16] For the purposes of this essay, the discussion is focussed upon the instances of direct discrimination and indirect discrimination i.e. discrimination by association, as the detailed discussion of all these forms of discrimination is beyond the scope of this essay.

The previous anti discrimination legislation contained the provisions that condemned only direct discrimination. [17] In other words, they didn’t contain the provisions for the protection of discrimination by association. The concept of discrimination by association suggests that the discrimination takes place when a person (A) associates another person (B) less favourably because of the former’s association with a person (C). [18] The new legislation recognises this concept of discrimination which is quite broad concept of discrimination. In earlier legislation, the concept of discrimination was limited to particular characteristics of a person. The Sex Discrimination Act 1975 condemns discrimination on the basis of sex. The Race Relations Act 1976 protects discrimination on the basis of ethnicity or racial backgrounds of a person. It means a claim would be filed before anti discrimination tribunal only when a person is discriminated because of his particular race, colour etc. The Disability Discrimination Act 1995 covers a different kind of discrimination that refers to discrimination ‘for a reason which relates to a person’s disability’ and ‘on the grounds of the disabled person’s disability.’ [19] Again, the Employment Equality (Religion or Belief) Regulations 2003 prohibits discrimination on the ‘grounds of the religion or belief of another person.’ This legislation seems to cover associated discrimination. The Employment Equality (Sexual Orientation) Regulations 2003 covers the discrimination ‘on the grounds of sexual orientation’ at the work place. The Employment Equality (Age) Regulations 2006 adopts an approach that seems to exclude discrimination by association. It covers the discrimination on the basis of a person’s his or her age alone.

In order to analyse the concerns of Dragon Duncan Banatyne, it is appropriate to look into the need for inclusion of discrimination by association into anti discrimination legislation. Taking the anti discrimination law on Race, it appears that if the law doesn’t protect discrimination by association, it becomes an unfair law. [20] Where, an Employer instructs his Manager not to employ black people at his work place. The Manager disobeys the instructions and employs the black people. The employer dismisses the Manager. The matter goes in the tribunal for discrimination. [21] The plea of Employer is that there is no specific case of discrimination as the Manager dismissed is a white man, hence no discrimination took place. Would it be fair to uphold this plea? The answer is NO. This is Showboat Entertainment Centre Ltd v Owens. [22] The Tribunal in this case held the dismissal of the Manager as discriminatory although the Manager was not a black himself. The tribunal here fulfilled the gap of the anti discrimination law to condemn discrimination that existed from direct discrimination to discrimination by association. [23] The tribunal arrived at this decision by looking at the discriminatory treatment as opposed to the personal characteristics of the Manger. It interpreted the words ‘racial grounds’ contained in the s 3(1) of the Race Relations Act 1976 by looking its overall intention to discourage discrimination on the basis of race. The decision was also challenged before the Court of Appeal and upheld in Weathersfield Ltd v Sargent [1999] ICR 425. [24]

There is again a need for the availability of the concept of discrimination by association in the anti discrimination laws when it comes to discourage the discrimination on the basis of faith or religious beliefs. An employer intimidates an employee to help him collect evidence another employee as the employer doesn’t like the religious beliefs of the second employee. [25] The second employee holds Hindu religion, which is disliked by the employer. The first employee refuses to help the employer in the collection of evidence against the second employee; whereupon, the employer dismisses both the employees. The matter comes before the tribunal for discrimination on the basis of the religious beliefs in accordance with the Employment Equality (Religion or Belief) Regulations 2003. The Tribunal held the removal of the second employee in violation of the above law but refused to hold the removal of the first employee in violation of the Employment Equality (Religion or Belief) Regulations 2003. It refused because the religion of the employer and the first employee was the same; so, it refused to recognise the discrimination by association. Was it a fair decision? The answer is NO. The Court of Appeal in Saini v All Saints Haque Centre [26] held that tribunal had erred when it didn’t protect the first employee as he was also victim of discriminatory treatment although he had no discriminatory particulars i.e. the religion of the employer and the second employee were different which was a cause of the discrimination. [27]

There may be circumstances in which there is a case of discrimination; yet, the application of the anti discrimination, available prior to the Equality Act 2010, law would not be able to protect such discrimination. Where, a person was called gay at work place although he was not a gay. Everyone laughed over him and made comments that he was a gay. He brought action under the Employment Equality (Sexual Orientation) Regulations 2003. His plea was that he was being discriminated at the work place by being called as gay although he was not a gay. This plea on the face of it doesn’t entitle him protection under the above law. [28] It is because he himself says that he is not a gay; so there is no specific incidence of discrimination in him to invoke the above law. [29] He could have pleaded discrimination, in accordance with the above law, when he was a gay in real and his colleagues made mockery on him by calling him gay. Would it be fair to ignore a real discrimination existing at a work place just because a particular incidence of discrimination i.e. gay nature is missing? The answer is NO. The object of the anti discrimination law at work place is to condemn discrimination. [30] This object would be defeated if the provisions of the above anti discrimination law are applied by giving them narrow interpretation. The Court of Appeal in English v Thomas Blinds Limited [31] held that the conduct at the work place was discriminatory. Here, it is not an incidence of discrimination by association but it is somewhat akin to discrimination in the absence of specific feature. [32]

There is another incidence in which the anti discrimination law seems to be lacking the ability to condemn discrimination in the absence of the concept of discrimination by association. In Coleman Attridge Law, a lady was discriminated at work place because she had one disable son. She was the only carer of her disabled son. When she used to take care of him, she was laughed at and thus discriminated by staff. [33] She brought an action before the anti discrimination tribunal under the Disability Discrimination Act 1995. On the face of the above act, it appears that there is no provision that could protect her. The Disability Discrimination Act 1995 says under ss 3A(5) and 3B that the disability should be the reason for discriminatory treatment of the person bringing an action. In other words, the disability should be the direct reason for bringing an action under this legislation. This was not the fact in the above case. The lady was not a disable person within the meaning of the above law. Would it be fair if the anti discrimination law for the protection of disabled person doesn’t afford protection to the person taking care of disabled persons? The answer is NO. The tribunal referred the matter to the European Court of Justice for deciding the issue in the light of the EU Equal Treatment Framework Directive (Council Directive No. 2000/78/EC). [34] The court interpreted article 2.1 of the EU Directive and held that the prohibition of the discrimination against disabled persons was not only limited for the protection of the disabled persons themselves but also for those who were taking care of the disabled persons. The court held that the provision would be invoked when employees would be treated less favourably than others because of their association with a disabled person. [35]

There are also drawbacks of the new legislation on anti discrimination i.e. the Equality Act 2010. Like Dragon Duncan Bannatyne pointed out that the scope of the new legislation is so broad that if someone cracks a joke on a worker at work place, he can sue the employer. [36] He pointed out that jokes are a matter of common parlance at workplaces; so, an employer would be at risk of litigation if someone takes it serious and decides to sue him. He goes on to say that in practice, there are lots of people who are involved in the work place e.g. workers, customers, delivery staff, visitors etc and if someone cracks a joke that means it is a potential trouble for the employer that a person is being treated discriminately at the work place by the application of the concept of the discrimination by association. The anti discrimination law puts the responsibility on the shoulders of the employer to prove that there was no such discrimination which is a harsh requirement for the dwindling businesses in a time of recession. [37]

The new legislation is likely to result in increased litigation against employers. The dragon pointed out that the new law requires disclosure of pay scales of employees. He believed that this is an invasion on the right of privacy of the person on the one hand and creates problems for the employers on the other hand. [38] It is an invasion on the privacy in the sense that one employee can require the employer to disclose the salary of another employee. And it creates trouble for the employer in the sense that it takes away his discretion of rewarding good employees with more wages. In the presence of the current scheme of anti discrimination law, an employee can bring an action against his employer if he or she believes that he is being discriminated in terms of his wages. In such circumstances, it is difficult for an employer to reward a good employee by offering him or her better wages than others. The dragon believed that there are people who play with the system in the case of protection of discrimination on the basis of sex. He believed that there is no upper cap limit for the compensation on the sexual discrimination. This results in enticing people to play with the system to bring actions against the employers. The employers would have to prove that there was no such discrimination, the failure whereof would mean that he has to pay heavy compensation to the claimant. [39]

There is a concern from the business community that because of the vague nature of the new anti discrimination law, it is likely to be abused by bringing false and vexatious claims. The current scheme of the new anti discrimination legislation affords same protection to vegans, teetotallers and atheists as is given to religious groups. [40] The new legislation also affords special and favourable treatment to the Gipsies and travellers as a matter of affirmative action for those disadvantaged people. The dragon believed that in the presence of new legislation, everybody will believe himself to be a victim and would plan to bring action against the employers. The new government has herself estimated that the anti discrimination law would cost about £180 millions. This cost doesn’t include the cost of the employer defending before the tribunals. [41]

Conclusion

This essay is an attempt to critically analyse the statement of Dragon Duncan Bannatyne in which he said that the new anti discrimination law i.e. the Equality Act 2010 is not based upon one principle but it encompasses several principles of the employment law. The discussion revealed that earlier there were loads of legislation on anti discrimination that addressed one issue of discrimination such as the Race Relations Act 1976 covered the discrimination based upon the race alone; the Sex Discrimination Act 1975 covered the discrimination on the basis of sex; the Employment Equality (Religion or Belief) Regulations 2003 covered the discrimination on the basis of religious beliefs; the Disability Discrimination Act 1995 covered the discrimination on the basis of disability of a person; and so on and so forth. But this legislation encompasses all the forms of possible discrimination. It has provided instances which could be the cause of discrimination followed by wide classification of discrimination in which it has added the direct and indirect legislation i.e. discrimination by association. It binds the employer to publish unequal wages of his or her employees that would mean less discretion for the employer in terms of rewarding his favourite workers and more chances of litigation from those who are not good workers and are paid low in comparison to those who are good workers.

The discussion also revealed that in the absence of provision that included legislation by association it was not possible to meet the ends of justice. In other words, the anti discrimination law on the face of its provisions could not protect the discrimination without judicial interpretation giving wide scope to the law. In the absence of statutory provision, the courts were forced to apply the principle of overall object of the previous legislations in order to remove the discrimination at work place. Now, there is a provision in the Equality Act 2010 which could be successfully applied to prevent discrimination at work place. With regard to the concern of the Dragon that the new legislation would give rise to increased and bogus litigation against employers, it is stated that the increase in the litigation is not a bad thing as it the law always encourages people to protect their rights; and the bogus litigation can be controlled by the courts by applying the provision of costs. The British courts are popular in awarding heavy damages to winning party on the pocket of the judgement defaulters; hence, vexatious litigation would be controlled by the application of provision of costs.