DISCRIMINATION LAW TO EQUALITY LAW
Introduction
Lord Davey in Allen v Flood [1898] AC 1, 172, said that ‘an employer may refuse to employ a
[workman] for the most mistaken, capricious, malicious or morally reprehensible motives that can
be conceived, but the workman has no right of action against him.’ The gendered language is
significant. This law applied not just to refusals to engage workers but, for example, to dismissals of
women who married, and to paying women less than men, even when they were performing the
same job (see Lord Atkinson in Roberts v Hopwood [1925] AC 578, 596, describing the East End of
London borough of Poplar Council’s policy of equal for the same work as ‘misguided principles of
socialistic philanthropy’: the popular vote was held not to prevail over the financial interest of
council ratepayers). Until the 1970s equal pay between the sexes was except for teachers rare.
There were exceptions to the principle of non-intervention: the Musicians’ Union successfully
defended a boycott of colour bars in dancehalls (Scala Ballroom (Wolverhampton) Ltd v Ratcliffe
[1958] 1 WLR 1057, CA) but that was in the context of a tortious claim of conspiracy against the
Union at a time when the courts were loath to intervene in industrial disputes. Women had broken
into the Jockey Club: Nagle v Feilden [1966] 2 QB 633, CA, even if Lord Denning MR’s reasoning that
female racehorse trainers had a ‘right to work’ was dubious, to say the least. The Disabled Persons
(Employment) Act 1944, a statute aimed at the reintegration of severely injured military personnel
into the labour force, provided for a 3% quota for disabled workers but the Act seems never to have
been enforced; indeed, enforcement was in the hands of the Secretary of State for Employment
(now Business, Innovation and Skills) and was by means of criminal proceedings, a method of
enforcement not in the modern armoury or ‘toolkit’ as it is called of the regulation of the
employment relationship.
Fifty years ago it could be easily said that there was only scanty anti-discrimination law in
employment. The position outside of employment law was worse: if the law was fragmentary in
employment law, outside it was negligible. Women were allowed to sit in Parliament (Sex
Disqualification (Removal) Act 1919) but, for example, the old universities were split on gender lines.
This note seeks to outline the develop of the law of discrimination in the next section and
towards the end demonstrate how the Equality bill will to some degree switch the focus from
individual enforcement by workers to preventive action by employers.
Discrimination law developments
(a) Equal pay
It is debatable whether equal pay between men and women falls within the concept of
discrimination law (for example, the 1,300 page tome by N. Bamforth, M. Malik, and C. O’Cinneide,
Discrimination Law: Theory and Context, Thomson, 1st ed., 2008, does not cover equal pay. Cf. the
standard student text, I. Smith & G.H. Thomas, Smith & Wood’s Employment Law, OUP, 9th ed., 2008,
where equal pay law is situated in the middle of a chapter on discrimination). Certainly the omission
in Bamforth et al. may be justified by the fact that the other laws on discrimination noted below
largely follow a certain pattern and equal pay does not, but there are contrary indications e.g. equal
pay and sex discrimination laws were meant to be read as a unified whole; discrimination law has
influenced equal pay law in both the width of the defence of ‘genuine material difference’ (see s. 1(3)
of the Equal Pay Act) and the development of the idea of indirectly discriminatory payment systems;
and while equal pay as between men and women and sex discrimination fall under different UK
statutes, pay unequal on racial grounds and race discrimination come under the same statute, the
Race Relations Act 1976. The Equal Pay Act 1970 was very much a statute uninfluenced by external
sources. Unlike later laws it was not based on EC or US law: indeed, in 1970 the UK was not an EC
member state. Its impetus derived from Mrs Barbara Castle, Secretary of State for Employment and
Productivity in the second Wilson government, and female seat-cover machinists at Ford who went
on strike for equal pay with men. However, after the UK acceded to the EC in 1973 there already was
an article in the Treaty of Rome 1957, Art. 119, now Art. 141, which was in the usual fashion of EC
law directly binding on both emanations of the State and private employers. Very much contrary to
the wishes of the then Prime Minister the government was obliged to amend the 1970 statute
because it did not conform to EC law: originally there were two routes to equal pay, work where the
man and woman did ‘like work’ (i.e. work which was the same or work where any differences were
not significant) and where a voluntarily undertaken job evaluation study had equally ranked the
man’s and the woman’s work. What the ECJ found to be missing in EC Commission v UK [1983] ECR
3431 was a compulsory method of job evaluation and UK law had to incorporate the third method of
acquiring equal pay, work of equal value: Equal Pay (Amendment) Regulations 1983, SI 1983/1794.
The equality bill does not amend the main law of equal pay e.g. there remains the necessity of an
actual comparator; unlike in the discrimination law noted below the tribunal may not construct an
hypothetical comparator.
(b) Sex discrimination
Sex discrimination law derives from the Sex Discrimination Act 1975 (SDA), which was the
first statute to lay down the template for the discrimination statutes which followed. The Act was
very much based on US law, and there would have been no indirect discrimination (see below), had
the then Home Secretary, Roy Jenkins, not been convinced to extend the law by his advisor, the now
Lord Lester, who had been persuaded by US commentators that a restriction to direct discrimination
would not push through the anti-discriminatory purpose of the legislation. Though there have been
substantial amendments since especially to bring the law into line with EC law (e.g. in respect to the
definition of indirect discrimination and the burden of proof), the standard approach is that liability
may be imposed in four ways: direct discrimination (called ‘disparate treatment’ in the USA), indirect
discrimination (called ‘disparate impact’ in the USA), victimisation and harassment. In respect of
race discrimination only segregation is also a form of discrimination. In the context of the SDA direct
discrimination is treating a member of the protected group, normally women, less favourably than
one does or would treat a member of the comparable group, here men. The phrase in italics signifies
that no actual comparable male needs to have been treated more favourably than the female
claimant: it is sufficient that a man would have been treated better. It is therefore sufficient for
there to be a hypothetical male comparator. Compare equal pay law, where there must be an actual
comparator of the opposite sex, a matter of some difficulty when jobs are occupationally segregated.
It should be noted that generally there is no defence of a direct discrimination claim, the exception
being age discrimination. In respect of indirect sexual discrimination, the definition has widened
across the years because of the effect of EC law and the employers’ defence of justification has, if
anything, been narrowed, and it is worth quoting the third redaction of indirect discrimination
because it provides the pattern for the other grounds of discrimination noted below. Section 1(2) of
the SDA now reads in relation to employment law claims:
‘… a person discriminates against a woman if -(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a
man, but –
(i) which puts or would put women at a particular disadvantage when compared to men,
(ii) which puts her at that disadvantage, and
(iii) which he cannot show to be a proportionate means of achieving that aim.’
At the time of writing there is no law of indirect disability discrimination but there is what may be
called the functional equivalent of reasonable accommodation, a concept again very much in the US
mould. The Equality bill does create a law of indirect disability discrimination.
Victimisation means again treating a person less favourably than the defendants do treat or
would treat another but on the basis that the person has brought a discrimination claim. For the
amendment made by the Equality bill, see below. Harassment originally was not a separate claim but
facts constituting harassment had to be made to fit the framework of direct discrimination: see
Porcelli v Strathclyde Regional Council [1986] ICR 564, CS, and cf. Pearce v Governing Body of
Mayfield Secondary School [2003] UKHL 34. A new definition of sexual harassment came into force
shortly after Pearce and again the terms of the statute, s. 4A(1) of the SDA, are worth quoting
because they form the template for other forms of harassment found in the discrimination statute:
‘… a person subjects a woman to harassment if –
(a) he engages in unwanted conduct that is related to her sex or that of another person and has
the purpose or effect –
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,
(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual
nature that has the purpose or effect –
(i) of violating her dignity, or
(ii) of creating an intimidating hostile, degrading, humiliating or offensive environment for her,
or
(c) on the ground of her rejection or submission to unwanted conduct of a kind mentioned in
paragraph (a) or (b), he treats her less favourably than he would treat her had she not
rejected, or submitted to, the conduct.’
Not surprisingly, this definition uses the exact words of the Equal Treatment Amendment Directive
2002/73 but in fact widens the scope of the Directive by making ‘purpose’ and ‘effect’ alternative
and not cumulative, as the Directive states.
The phrase ‘sex discrimination’ is both wider than it may appear at first sight. It covers
discrimination against married persons and those in a civil partnership, but not single persons (s. 3 as
amended by the Civil Partnerships Act 2004, s. 251): see Bick v Royal West of England School for the
Deaf [1976] IRLR 326, IT: not illegal to discriminate against a single person (who was about to get
married). It should be noted that the Equal Treatment Directive 76/207, now consolidated into the
Equal Treatment Amendment Directive, extends to discrimination on grounds of family status, a
wider concept than marriage and civil partnership, but the ECJ has not had occasion to determine its
width. The 1975 statute extends to discrimination on the grounds of gender reassignment; see P v S
[1996] ECR 1-2143, which led to the Sex Discrimination (Gender Reassignment) Regulations 1999 SI
1999/1102, which in turn inserted s. 2A into the SDA. However, and famously, the Act does not
cover sexual orientation discrimination (see especially Grant v South-West Trains Ltd [1998] ICR 449,
ECJ). Change in the law has to await EC legislation, on which see the Employment Equality (Sexual
Orientation) Regulations 2003 SI 2003/1661, below.
Besides the standard definitions of direct and indirect discrimination, victimisation and
harassment, the SDA as amended also contains the standard template for e.g. vicarious liability (see
Tower Boot Co Ltd v Jones [1997] ICR 254, where the Court of Appeal broke free from the tortious
definition, widening it to encompass, for example, job-related discrimination out of work time and
off work premises) and the burden of proof (see the Burden of Proof Directive 97/80 and s. 63A of
the SDA, as interpreted particularly in Igen Ltd v Wong [2005] ICR 931, CA). There is also a list of
exceptions and what are called ‘genuine occupational requirements’, previously ‘genuine
occupational qualifications’, such as for physiology such as modelling bikinis. Again, the influence of
US law is strong: in the States there are exceptions called ‘bona fide occupational qualifications’.
However, since 1975 the principal influence has been EC law and some illustrations of that influence
have already been mentioned such as the increased width of the definition of indirect discrimination,
but perhaps the greatest extension of UK law through the EC was the abolition of the maximum limit
on compensation, which used to be tied to the financial cap to the compensatory award in unfair
dismissal, a maximum which still applies. The ECJ disapplied the limit in Marshall v Southampton and
South West Hampshire AHA (no. 2) [1993] ECR I-4367 on the normal EC law basis that the award
after the maximum was applied was not sufficiently dissuasive of sexual discrimination.
Both equal pay and sex discrimination law at the EC level have been consolidated into
Directive 2006/54.
(c) Race discrimination
The mention of EC law reminds us that like the SDA the Race Relations Act 1976 (RRA) was not
drafted to comply with EC law but it was very much drafted to be consistent with the SDA, which as
we have seen was founded upon US law. While there were differences between the RRA and the
SDA (e.g. there could be separate lavatory accommodation for men and women but not for blacks
and whites), the basic rule was that the two statutes were meant to interpreted jointly: a definition
in one statute was to be read as applying to the other one, and, for example, the Tower Boot case
mentioned above in the context of the SDA was in fact a RRA authority. While the Directive dealing
with sex discrimination existed since 1976, shortly after the SDA, the EC had no competence in race
discrimination until the Treaty of Amsterdam 1997, which led to the Directive 2000/43, often called
the ‘Race Directive’. This Directive bears the influence of the UK experience. Once major problem is
that the Directive affects only part of the area covered by UK RRA: race itself and ethnic and national
origins fall within the Directive but colour and nationality do not because the RRA was amended by a
statutory instrument based on the European Communities Act 1972 and not on primary legislation,
and the Directive does not apply to colour and nationality. The effect is that colour and nationality
remain unaffected by the amendments to the Act made as a result of the Directive. The result is that
there are, for example, two definitions of indirect discrimination, one, the original one, applying to
to colour and nationality, and one, the revised version, applying to the other racial grounds; but
there is seemingly incorrect law stating that the burden of proof switches in the same way in respect
of both race, and national and ethnic origins on the one hand and colour and nationality on the
other. For amendments in the bill see below.
(d) Disability discrimination
The Disability Discrimination Act 1995 (DDA) was not drafted following the template laid down in the
SDA and the RRA but like them it was not based on EC law. Some of it resembles the US Americans
with Disabilities Act 1990, particularly the use of a separate mode of claiming disability
discrimination, that of reasonable adjustments, which closely resembles the US duty to make
reasonable accommodation for disabilities. However, it may be said that over time the law has
become, through the influence of EC law, revised to approximate to the standard template for
discrimination law. Perhaps the greatest amendments for any strand (see below) of discrimination
are in this area.
(e) Sexual orientation
As stated above, the ECJ held that sexual orientation discrimination did not fall within the
prohibition of sex discrimination. However, the Treaty of Amsterdam 1997 provided the EC with
competence to make directives on this and the following two matters in the employment sphere.
The outcome was Directive 2000/78, what is often called the Employment Directive. There were the
usual prohibitions on direct and indirect discrimination and on victimisation and harassment. The
Directive was transposed into UK law by the Employment Equality (Sexual Orientation) Regulations
2003, SI 2003/1661.
(f) Religion or belief
The Employment Directive 2000 with regards to this strand of discrimination was transposed into UK
law by means of the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1662. Again
the standard concepts were incorporated: direct and indirect discrimination, victimisation and
harassment. The latest authority, Grainger plc v Nicholson, holds that ‘belief’, which is defined in the
Regulations as ‘philosophical belief’ covers a genuinely held belief in man-made climate change and
the concomitant changes to morality of various forms of behaviour.
(g) Age
Again the Employment Directive 2000 provides the legal source for this strand of discrimination. The
Employment Equality (Age) Regulations 2006, SI 2006/1031, transposed the Directive. The orthodox
framework was followed with one major exception. Unlike direct discrimination elsewhere, direct
age discrimination may be justified. It must be stated too that the exceptions to age discrimination
are worded ambiguously but seem to be wider than elsewhere in discrimination law.
The bill’s purposes
(1) Part of the bill is aimed at consolidating and clarifying the law, putting it in one place and
tidying up the law. This in itself is a laudable aim. The law is based on several Directives and
the first discrimination statute to be put into a uniform framework dates from the 1970s:
they have been many home-grown and EC-led changes since then.
(2) Terminology is also made standard. For example, labour lawyers talked of the six ‘strands’ of
discrimination, as listed in (b) to (g) above but there was no statutory language.
(3) The bill provides that: there are now to be nine ‘protected characteristics’. These nine also
bring out the fact that sometimes one of the characteristics was hidden within another one
e.g. discrimination on both gender reassignment and marriage and civil partnership grounds
came under sexual discrimination (but, as we have seen, sexual orientation discrimination
did not). The bill provides the opportunity for disentangling the law as it has developed.
These nine protected characteristics are:

age

disability

gender reassignment

marriage and civil partnership

pregnancy or maternity

race

religion or belief

sex

sexual orientation.
(4) The bill also strengthens law which has been weakened by judicial interpretation, the best
example of which is the attempt to get round the House of Lords’ decision in London
Borough of Lewisham v Malcolm [2008] UKHL 43 on the comparator needed in a
discrimination case. The Malcolm case overruled Clark v Novacold Ltd [1999] ICR 951, CA,
which had held that a disabled person was to be compared against a non-disabled person
who did satisfy the requirements of the job. An example will make this plain. A disabled
woman has to take time off because of her disability, and is dismissed for absence; a nondisabled person who was not absent was under Novacold the comparator. The effect can
easily be seen. If one dismisses a disabled person for absence and one would not have
dismissed a non-disabled person, then the disabled one had a claim. Malcolm reverted to
comparing a disabled person who had been absent against a non-disabled one who had
been absent for the same amount of time. The bill changes the law in two ways to get round
Malcolm. For the first time indirect discrimination is introduced into disability law (and as
ever there is a defence of justification), and a new concept, discrimination arising from a
disability is introduced. This latter concept is defined thus:
‘A person (A) discriminates against a disabled person (B) if –
(a) A treats B in a particular way,
(b) because of B’s disability, the treatment amounts to a detriment, and
(c) A cannot show that the treatment is a proportionate means of achieving a legitimate
aim.’
Because this novel concept does not require a comparator, the Malcolm issue of selecting
the appropriate comparator disappears.
(5) The basic definition of disability remains untouched. However, the width of what are day-today activities is no longer restricted to the eight such stated in the Disability Discrimination
Act 1995.
(6) The bill also seeks to apply common language across the new nine protected characteristics.
An example occurs in the revised definition of direct discrimination: the claimant must have
been or would have been treated less favourably than the comparator ‘because of’ the
protected characteristic; cf. the SDA, s. 1(1)(a): ‘on the ground of her sex’ and the RRA s.
1(1)(a)’s ‘on racial grounds’. Other examples include the definitions of indirect discrimination
and of associative and perceived discrimination. Cf. Coleman v Attridge Law [2008] IRLR 722,
ECJ: carer of disabled child was held to be discriminated against on grounds of disability, her
son’s disability, and see the EAT judgment of 30 October 2009, UKEAT/0071/09/JOJ; and for
perceived characteristics see English v Thomas Sanderson Ltd [2009] ICR 543, CA: straight
man discriminated against by co-workers who said that because he had attended public
school and lived in Brighton, he was homosexual!
(7) The longstanding concept of victimisation (see above) has been simplified and widened. A
claimant is victimised if he or she is subjected to a detriment for doing a protected act. There
is no longer a need for the behaviour of the alleged victimisers to be compared against how
they may have treated a person who had not done the protected act.
(8) Harassment by third parties, thereby making the employers liable, is extended to all
protected characteristics except marriage/civil partnership and pregnancy/maternity.
(9) There is also an attempt to ensure that persons discriminated against on two grounds e.g.
because she is a ‘black woman’ (cf. the well-known case involving the Asian female President
of the Law Society, Bahl v Law Society [2004] EWCA Civ 1070), so-called ‘multiple
discrimination’, find protection within the bill. However, marriage/civil partnership and
pregnancy/maternity cannot form one of the characteristics for this purpose; and the bill is
restricted to two characteristics: the day of the one-legged black lesbian beloved of
polytechnic lecturers has not dawned!
All of these are praiseworthy objectives. However, the bill also marks a sea change to some
degree in enforcement, which is based on shifting control from individual workers bringing claims to
employers proactively producing change by eliminating inequalities.
Proactive enforcement
There are a number of measures which demonstrate this shift. At present it is difficult to gauge their
effectiveness and the below does not attempt to provide an ordering of the changes in terms of
importance.
(1) Currently an employment tribunal may order any of three possible remedies: a declaration,
compensation and a recommendation. In relation to the last the order must be one relating
to this particular worker (e.g. put her on the shortlist for the next management grade
appointment). The bill provides for a wider order. The recommendation may apply generally
across the workforce. This is particularly important when the worker has left employment,
and it is estimated that some 70% of workers who bring this type of claim have done so.
(2) Since the Race Relations (Amendment) Act 2000, a consequence of the Stephen Lawrence
inquiry, statute has imposed duties on public authorities to act in a non-discriminatory way.
By the time of the bill three duties had been imposed: race, gender and disability. The bill
widens the duties to cover the protected characteristics.
(3) The bill also imposes a socio-economic duty on public authorities.
(4) The bill also makes void ‘gagging clauses’, a phrase which in this context refers to
contractual terms which ban colleagues from discussing their pay. The aim is to allow
women to find out from their male co-workers what they are earning.
(5) Equal pay audits are not imposed statutorily but if employers do not move towards auditing,
there is a power to impose them from 2013.
(6) Positive action in recruitment and promotion is allowed when the employers reasonably
believe that one protected group has suffered a disadvantage or where the proportion of a
protected group in the workforce is disproportionately low. The condition is that the
member of the protected class is ‘as qualified’ as one in the non-protected category. There is
no definition as to when one person is as well qualified as another.
Some defects
(1) The government did not take the opportunity to remodel the definition of justification to
indirect discriminated. Across the protected characteristics it reads that the provision,
criterion or practice must be a proportionate means of achieving a legitimate aim. The EC
definition speaks of legitimate aims which are ‘appropriate and necessary’, arguably a higher
test. This leaves the law open to e.g. Francovich-style actions. There was a lengthy campaign
led by Colm O’Cinneide to include a purpose clause in the bill, which would for instance have
instated courts and tribunals as to how the Act was to be interpreted, but the government
was against such a clause.
(2) The government very much adhered to the medical model of disability and did not adopt the
social model. The definition relies upon impairment: does this person suffer an impairment
as defined medically? The social model looks more to the reaction of non-disabled to the
disabled.
(3) There are nine protected characteristics. The ECHR Art. 14 is unrestricted and there are
some other characteristics which one might wish to ban e.g. discrimination on grounds of
caste, obesity ….
(4) The definition of equality underlying the bill is not clear. Much of it turns on formal equality
(‘treat like alike’) but there are aspects of substantive equality e.g. with regard to disability
discrimination and positive action. For example, with regard to protected characteristics the
usual phrasing means that both groups are protected against disparate treatment or
disparate impact (e.g. both men and women, both blacks and whites) are protected.
However, only the disabled are protected, not the non-disabled; and see Archibald v Fife
Council [2004] ICR 954, HL.
Michael Jefferson
University of Sheffield
‘