Friday, November 19, 2010



By Christina Morton, Withers LLP, UK

A long awaited statute aimed at consolidating and rationalising discrimination law in the UK received Royal Assent on 1st April 2010 and its main provisions came into effect on 1st October. UK lawyers expect its impact to be subtle rather than dramatic. It replaces existing discrimination legislation with a single Act that covers discrimination both within and outside the employment field on grounds of sex, race, disability, age, sexual orientation, religion or belief, pregnancy and maternity, marital status and gender reassignment (the ‘protected characteristics’).
Any change in the precise words used in legislation, even if it is not intended to change the substantive law, will have some unintended consequences. These however tend to emerge over time, and the impact is rarely felt in the first year after a new law comes into effect. But some of the Act's changes are substantive and potentially problematic for employers and employees.


The Act harmonises key concepts and definitions, such as indirect discrimination, justification, occupational requirements and the burden of proof. Technical and historic differences between the definitions in different statutes have resulted in confusion (and, some would say, unnecessary case law).

‘Because of’

Previous legislation addressed direct discrimination by prohibiting conduct that was ‘on the grounds of’ a protected characteristic. The new law uses the words ‘because of’. The Government has stated that it regards this as making no material difference to the law, but some commentators disagree, on the basis that past cases which consider the meaning of the words ‘on grounds of’ will not necessarily apply to the new wording. Only future case law will clarify this.

Perception and association

Direct discrimination will cover discrimination by association with someone with any protected characteristic (for example harassing an employee because they care for an elderly relative would be discrimination by association because of age).

The Act will also cover discrimination by perception (for example treating someone less favourably because you perceive them to be Muslim because of the way they dress). The employee will be protected from discrimination because of religion, even if he or she has no actual religious belief.

Third party harassment

The Act extends the protection available to employees who are harassed at work by third parties such as clients or customers. At present this protection is available in cases of sex-based or sexual harassment, but not in cases involving other protected characteristics. Employers will be liable where they have failed to take reasonably practicable steps to prevent harassment by third parties where the employer knows that this has taken place on at least two occasions.

Restriction on pre-employment questions about health

The Act restricts the ability of employers to ask questions relating to a job applicant’s health record. A question about health may only be put if, for example the employer needs to establish whether the employee will be able to carry out the functions that are ‘intrinsic’ to the job, or to establish whether any adjustment needs to be made for a disabled applicant who needs to undergo an assessment for the job. Whilst a person will not be able to complain of discrimination just because a question has been put when it should not have been, that person will be able to bring a claim about the way the employer acts on that information, for example by not offering an interview fir a job for which the employee is otherwise well qualified. The burden of proof will then fall on the employer to show that it has not used the information in a way that amounts to less favourable treatment under the Act.

Protection for disabled employees strengthened

The Act generally extends the protection available to disabled people, which has been narrowed as a result of recent case law in the UK. Disabled people will for the first time be protected from ‘discrimination arising from disability’, a new concept which covers unjustified unfavourable treatment ‘because of something arising in consequence of ..disability’. An example might be a decision not to appoint someone to a job because arthritis made it difficult for them to stand up to make presentations to clients. This new definition is very wide and it is not clear how close the connection between the disability and the ‘something’ will be have to be for an employer to be liable.

Disabled employees will also be protected from indirect disability discrimination for the first time.

Positive action rules extended

Positive action was lawful under the pre October 1st law in the UK, but was restricted to action such as training designed to encourage under-represented groups to apply for particular jobs. The Act makes provision for an extension in the law to allow employers to recruit or promote someone from an under-represented group, but only where they have a choice between two or more equally qualified candidates. This provision is not yet in force and the commitment of the new Government to bringing it into force is questionable. Arguably it represents a form of positive discrimination, although the Act calls it ‘Positive action: recruitment and promotion’. The question of what being ‘equally qualified’ means is not dealt with in the Act, which may make employers nervous of relying on the provision, if it is ever brought into force.

Protected discussions about pay

The Act will protect employees who discuss their pay with one another (or with others such as union representatives) with a view to establishing whether there is a connection between pay and one of the protected characteristics. Clauses in contracts prohibiting these discussions will be unenforceable. It is unclear how much of a pay related discussion must concern the possibility of discrimination for it to attract protection under the Act.

Gender pay reporting

The Act also contains proposals for gender pay reporting, aimed at reducing the persistent gender pay gap. However these provisions will not come into force until 2013 at the earliest.

Overseas employees

The Act apparently reduces the protection available to employees of UK companies who work overseas. At present those who do at least some of their work in the UK or have sufficient connection with the UK are covered by UK discrimination law. These old rules do not appear in the Act and it will be a matter for tribunals to decide whether the protection of UK law should apply.
Already then it is clear that there are significant areas where the meaning of the law and its effect on individuals is debatable. As always it will be for the courts to fill the gaps.

Public sector measures

The Act’s first section sets out an entirely new measure – a public sector duty regarding socio economic inequalities. This is a controversial provision and the new Coalition Government announced in November that it will not be bringing it into force. However existing public sector duties, in the fields of race, sex and disability have been preserved in the Act and protected characteristics that were not previously covered, namely age, sexual orientation and religion or belief, have been incorporated into a restated measure that requires public authorities, when exercising their public functions, to eliminate discrimination, advance equality and foster good relations between those who have and those who do not have particular protected characteristics.

Private sector organisations that are in the business of provide services to public sector bodies or that undertake contracted out functions, should be aware of the changes to the law affecting the public sector. The Act explicitly states that a person who is not a public body but is exercising a public function is under the same duties as a public body. Public bodies will be obliged to ensure that if they delegate their functions or enter into service contracts, they impose equality requirements on suppliers and contractors that mirror their own priorities. So companies in these fields of operation may need to improve or adapt their performance on issues such as training and monitoring of equality issues. They may find themselves asked to take very specific steps to address inequalities, such as implementing positive action programmes as part of the performance of a contract.