Essentials of Employment Law
Teaching notes
CHAPTER 6
Discrimination against employees on the grounds of sex,
sexual orientation, race, religion or belief
Overview
The current anti-discrimination law is encapsulated in five separate pieces of
legislation:
the Equal Pay Act 1970
the Sex Discrimination Act 1975
the Race Relations Act 1976
the Employment Equality (Sexual Orientation) Regulations 2003, and
the Employment Equality (Religion or Belief) Regulations 2003.
These are to be replaced by a single piece of legislation which will come into effect
over several years.
The EU and decisions of the European Court of Justice have a considerable role in UK
discrimination law.
THE EQUALITY BILL 2009
The Bill aims to replace nine major pieces of legislation by a single Act on equality
matters. It will replace such legislation as the Sex Discrimination Act 1975 and the
Race Relations Act 1976 and in addition aims to:
 ban age discrimination in the provision of goods, facilities and services. Prior to the
Bill, age discrimination regulation was confined to tackling age discrimination in
employment
 increase transparency, particularly to tackle the gender pay gap
 extend the equality duty of public bodies: the Bill will ensure that public bodies
report on equality issues
 encourage the public sector to influence equality issues in the private sector
through the use of its purchasing power
 extend the scope for positive action, so giving employers an opportunity to ensure
diversity in their workforces
 strengthen enforcement by enabling tribunals, in discrimination cases, to make
wider recommendations to employers on improvements
 simplify the law on disability discrimination so people are clearer about when they
are protected.
THE SEX DISCRIMINATION ACT 1975, THE RACE RELATIONS ACT 1976,
THE SEXUAL ORIENTATION REGULATIONS 2003 AND THE RELIGION OR
BELIEF REGULATIONS 2003
The titles do not reflect the matters that are covered. The Sex Discrimination Act 1975
(SDA 1975) outlaws discrimination and harassment against civil partners and married –
but not single – persons. ‘Sexual orientation’ means an orientation towards persons of
the same sex, the opposite sex or both sexes. It does not include sexual practices or
preferences.
The Race Relations Act 1976 (RRA 1976) defines ‘racial grounds’ as meaning colour,
race, nationality, national or ethnic origins. A racial group defined by colour may
include people of more than one ethnic origin. ‘National origins’ are not limited to
‘nationality’ and to citizenship acquired at birth. A person can become a member of a
racial group through adherence – for example, by marriage. Although a racial group
cannot be defined by language or religion alone, it has been accepted that Sikhs, Jews
and Gypsies all fall within the scope of the Race Relations Act 1976. In contrast,
Rastafarians have not established a separate identity by reference to their ethnic origins
and are therefore not protected by the 1976 Act. This group should now get the benefit
of the RB Regulations 2003
Direct discrimination
Direct discrimination occurs where a person is treated less favourably than a person of
the opposite sex, a single person or a person not of the same racial group, etc, would be
treated. This also applies to a generalised assumption that people in a particular group
possess or lack certain characteristics.
Harassment
Harassment is ‘unwanted conduct which has the purpose or effect of violating [an]
other person’s dignity, or creating an intimidating, hostile, degrading, humiliating or
offensive environment’. In addition, unwanted verbal, non-verbal or physical conduct
of a sexual nature is harassment.
The identity of individuals may be protected by a ‘restricted reporting order’, but this
cannot apply to corporate bodies. Section 1(1) of the Protection from Harassment Act
1997 declares that a person must not pursue a course of conduct which amounts to the
harassment of another or which he or she knows, or ought to know, amounts to the
harassment of another. It should be noted that this is a criminal offence. It is also a
criminal offence intentionally to cause another person harassment, alarm or distress.
Indirect discrimination
Indirect discrimination on the grounds of colour or nationality occurs when an
employer applies a requirement or condition such that the proportion of the employees
or applicants of one group who can comply with it is significantly smaller than the
proportion of persons of a different group who can.
Indirect discrimination on the grounds of race, religion, belief, ethnic or national
origins, or sexual orientation occurs when a provision, criterion or practice is applied to
employees or applicants generally but that puts some of them at a particular
disadvantage, and the advantage thus gained by the others cannot be shown to be a
proportionate means of achieving a legitimate aim.
Justification
Where indirect discrimination has been suggested or claimed, the employer will have to
satisfy the tribunal that any discriminatory requirement or condition is justifiable.
A tribunal must assess the effects of the requirement and the employer must
demonstrate that the requirement meets a legitimate objective and that the means
chosen are appropriate and necessary (proportionate) to achieving that objective.
Neither sex nor race discrimination can be justified on the basis of customer or union
preferences.
Recruitment and selection
It is unlawful to discriminate on the prohibited grounds in the arrangements made for
the purpose of determining who should be offered employment, in the terms on which
employment is offered, or by ‘refusing or deliberately omitting’ to offer employment.
The legislation aims to prevent the emergence or continuation of discriminatory
practices – ie conduct which does not, in itself, amount to unlawful discrimination but
which in fact results in discriminatory treatment.
Lawful discrimination
Discrimination may be lawful in certain circumstances:
Genuine occupational qualifications or requirements may apply for example where
there is a need for authenticity or a particular physiology in entertainment, or where it
is necessary to preserve decency or privacy, or where it is necessary to live in at the
employment and there it is impractical to provide separate sleeping and sanitary
facilities, or where the job-holder provides personal welfare services which can most
effectively be provided by a person of a particular racial group.
It is lawful to discriminate if it is necessary to do so to comply with a requirement of an
existing statutory provision such as one which, for example, affords protection to
women in pregnancy or following childbirth.
Unequal treatment in employment and dismissals
It is unlawful for employers to discriminate

in the terms of employment

in access to promotion, transfer or training, or to benefits, facilities or services
by dismissing or subjecting the employee to any other detriment.
In dismissal on the grounds of race, ethnic or national origins or sexual orientation,
dismissal specifically includes the non-renewal of a limited-term contract or a
constructive dismissal. In a dismissal involving unlawful harassment or an act of
discrimination on the grounds of race, ethnic or national origins, religion or belief, sex
or sexual orientation, it is unlawful to inflict further harassment or discrimination on
these grounds if it ‘arises out of and is closely connected to’ the employment
relationship.
Positive action may be permissible in certain circumstances. The European Court of
Justice has held that rules which allow women to be preferred for promotion over male
colleagues are acceptable provided that the male and female candidates in question are
equally qualified and that the sector in question is one in which women are underrepresented.
Special arrangements can be made to train persons of a particular sex or racial group if
it can be shown that within the previous 12 months only a small minority of that sex or
racial group was performing a particular type of work.
Positive action can be taken if it ‘reasonably appears to the person doing the act that it
prevents or compensates for disadvantages linked to sexual orientation, religion or
belief suffered by persons of that sexual orientation, religion or belief doing that work
or likely to take up that work’.
Occupational pension schemes must contain an equal treatment rule which ensures that
men and women are offered the same rights to join a scheme as well as being entitled to
the same benefits. However, equal treatment is enforceable only in relation to
pensionable service after 17 May 1990.
It is automatically unfair to dismiss a woman if the reason is in any way connected with
her pregnancy.
Selection for redundancy on the prohibited grounds is also unlawful.
A term in a contract or collective agreement is void where its inclusion renders the
making of the contract unlawful by virtue of the SDA 1975 or it provides for the doing
of an act that would be unlawful under this legislation.
Liability
If the provisions of the anti-discrimination legislation are not complied with, both the
employing body and named individuals may be sued. Individuals may be liable for
instructing or putting pressure on someone to perform an unlawful act and for
knowingly aiding another person to commit an unlawful act. Employers are liable for
the acts of employees in the course of employment, whether or not they were done with
the employer’s knowledge or approval, unless it can be proved that the employer ‘took
such steps as were reasonably practicable to prevent the employee from doing that act’.
Complaints must be brought before an employment tribunal within three months of the
‘act complained of’. An act that extends over a period is to be treated as done at the end
of that period. Out-of-time claims can be heard if it is just and equitable to do so, and
the strength of the employee’s complaint may be a factor.
Discrimination and the burden of proof
The burden of proof is formally reversed in anti-discrimination cases. First, the
claimant has to prove facts from which the employment tribunal could conclude in the
absence of an adequate explanation that the respondent committed, or is to be treated as
having committed, an unlawful act of discrimination. Second, the respondent has to
prove that it did not commit, or is not to be treated as having committed, the unlawful
act against the claimant. If the explanation is inadequate, the employment tribunal must
uphold the complaint.
THE EQUAL PAY ACT 1970
An equality clause operates when a person is employed on ‘like work’, work rated as
equivalent or work of equal value to that of a person of the opposite sex in the same
employment. Men and women are to be treated as in the same employment if they are
employed at the same establishment or at establishments in Great Britain which
observe common terms and conditions of employment. ‘Common terms and
conditions’ means terms and conditions that are substantially comparable on a broad
basis rather than identically the same terms and conditions.
The effect of the equality clause is that any term in a person’s contract (whether
concerned with pay or not) which is less favourable than an equivalent clause in the
contract of a person of the opposite sex is modified so as to be not less favourable.
‘Pay’ means ‘the ordinary basic minimum wage or salary and any other consideration,
whether in cash or in kind, which the worker receives, directly or indirectly, in respect
of his employment from his employer’.
What is ‘like work’?
The concept of ‘like work’ focuses on the job rather than the person performing it.
Once a person has shown that his or her work is of the same or broadly similar nature
as that of a person of the opposite sex, unless the employer can prove that any
differences are of practical importance in relation to terms and conditions of
employment, that person is to be regarded as employed on ‘like work’.
What is ‘work rated as equivalent’?
According to section 1(5) EPA 1970, a person’s work will only be regarded as rated as
equivalent to that of a person of the opposite sex if it has been given equal value under
a properly conducted job evaluation scheme, including the allocation to a grade or scale
at the end of the evaluation process.
A valid job evaluation exercise will evaluate the job and not the person performing it,
and if evaluation studies are to be relied on, they must be analytical in the sense of
dividing a physical or abstract whole into its constituent parts. It is clearly insufficient
if benchmark jobs have been evaluated using a system of job evaluation whereas the
jobs of the applicant and comparators have not.
Equal-value claims
An equal-value claim can be pursued so long as the applicant’s comparator is not
engaged on like work or work rated as equivalent. Where, for example, a woman can
show that she is employed on like work, or work rated as equivalent, an employer can
still defeat a claim for equal pay by proving on the balance of probabilities that the
variation is ‘genuinely due to a material difference (other than the difference of sex)
between her case and his’. If there is an equal-value claim, the employer need only
show that a variation between a woman’s and a man’s contract is genuinely due to a
factor which is (a) material, and (b) not the difference of sex. In this context ‘material’
means significant and relevant.
Piecework
The ECJ has ruled that where individual pay includes a variable element depending on
each worker’s output and it is impossible to identify the factors that determined how
the variable element in pay was calculated, the burden of proving that the differences
found are not the result of sex discrimination may shift to the employer.
Red-circling
This is the practice of metaphorically drawing a circle around the names of those within
a group that is protected or afforded some other preferential treatment – for example,
employees demoted through no fault of their own as the result of reorganisation. Such
action may be perfectly lawful but if the underlying reason for different treatment is
sex-based it cannot be accepted as a defence. Employers have to justify the inclusion of
every employee in a red-circled group and must prove that at the time of admission to
the circle the more favourable terms were related to a consideration other than sex.
Enforcement
Where there is a dispute as to the effect of an equality clause, both the employee and
the employer can apply to an employment tribunal. Equal-pay claims must be lodged
on or before a qualifying date, which is normally six months after the last day of
employment. Complainants must identify a comparable person of the opposite sex and
cannot launch an application without some sort of prima facie case.