Equality Act 2010: 10 example dual discrimination scenarios

Author: Stephen Simpson

Harriet Harman has said that the Labour Party would implement the dual discrimination provisions in the Equality Act 2010 if it returned to Government. The Equality Act 2010 allows for the introduction of the concept of dual discrimination where an individual who believes that he or she has been treated less favourably because of a combination of two protected characteristics can bring a combined claim. We present 10 examples of scenarios that might lead to claims of dual discrimination.

Introduction to dual discrimination

The Equality Act 2010 has provisions that allow for the introduction of the concept of dual discrimination where an individual is less favourably treated because of a combination of two protected characteristics. If introduced, the dual discrimination provisions would enable individuals to bring claims of direct discrimination because of a combination of two relevant protected characteristics, which are:

  • age;
  • disability;
  • gender reassignment;
  • race;
  • religion or belief;
  • sex; and
  • sexual orientation.

Dual discrimination could be brought only in relation to direct discrimination. An individual could not bring a dual discrimination claim in relation to indirect discrimination, harassment or victimisation. Two protected characteristics would be excluded from the dual discrimination provisions in the Equality Act 2010: marriage and civil partnership, and pregnancy and maternity.

An individual bringing a dual discrimination claim could still bring separate claims for less favourable treatment because of one protected characteristic. For example, a woman who thinks that she has been treated less favourably because of her gender and because she is black could bring three claims: a dual discrimination claim for race/sex; a separate claim for race discrimination; and a separate claim for sex discrimination.

The main advantage of bringing a dual discrimination claim is that the individual does not need to show that, taken separately, claims of direct discrimination because of each of the protected characteristics in the combination would be successful. For example, a black woman would not need to have a successful claim of direct discrimination because of race and a successful claim of direct discrimination because of sex to bring a successful race/sex dual discrimination claim.

Example 1: race/sex

Scenario

Lena is a black woman who answers telephones in a call centre. She is passed over for promotion to work on reception because her manager thinks that black women do not perform well in direct-facing customer service roles.

What dual discrimination claim could Lena bring?

  • Race discrimination.
  • Sex discrimination.

Explanation

This is a good example of how a dual discrimination claim under the Equality Act 2010 might be stronger than separate claims for race and sex discrimination. The employer could point to a white woman and a black man who have equivalent qualifications and experience and who have been appointed to the role in question. Lena might therefore have difficulty in showing that she was treated less favourably because of race or sex alone.

Example 2: race/sex

Scenario

Sidney is a black man who worked in an engineering firm where banter is common. When he bought a new car, two of his colleagues made repeated jokes saying that he must be a drug dealer to be able to afford such a nice car. Sidney made a complaint to his employer about his treatment, but was ignored. One of his colleagues found out about this and confronted Sidney. A scuffle broke out and Sidney was dismissed by his employer for fighting at work.

What dual discrimination claim could Sidney bring?

  • Race discrimination.
  • Sex discrimination.

Explanation

Sidney would have a strong case for direct race discrimination, but it is unlikely that he would bring a claim for direct sex discrimination. The dual discrimination provisions in the Equality Act 2010 would allow him to bring a combined claim for race and sex discrimination. He could argue before the employment tribunal that he was treated less favourably because of a stereotypical view that drug dealers are more likely to be black men.

Example 3: sex/age

Scenario

Sarah, who is 28 and has one small child, applied for a post with a prospective employer. She was asked at the first interview stage if she intends to have any more children. Although she felt embarrassed by and uncomfortable with the question, she said that it was not her intention to have any more children. Sarah did not get the job and felt that the questions had been aimed at sifting out women of child-bearing age who might become pregnant. She later found out that two men in their 40s had been called back for second interviews.

What dual discrimination claim could Sarah bring?

  • Sex discrimination.
  • Age discrimination.

Explanation

While asking a female applicant in a job interview if she is going to have any more children is blatantly discriminatory on the ground of sex, Sarah might also consider bringing a claim for age discrimination. An employer that refuses to recruit women of child-bearing age (generally considered to be from a woman's early 20s to mid 30s) could also be said to be committing age discrimination.

Example 4: sex/age

Scenario

Joan is an older woman who applied for a job as a driving instructor. She was unsuccessful, and was told that the reason for this was that it was not considered a suitable job for an older woman. The driving school advised her that it did not think that she would have the strength and agility needed to grab the steering wheel or be able to brake quickly.

What dual discrimination claim could Joan bring?

  • Sex discrimination.
  • Age discrimination.

Explanation

It may be advantageous for Joan to bring a dual discrimination claim under the Equality Act 2010 as her individual claims for direct sex discrimination and age discrimination would probably be weaker than a combined claim. When bringing her dual discrimination claim, Joan could argue that the recruiter acted out of a stereotypical view that older women are not good drivers.

Example 5: sexual orientation/sex

Scenario

Olivia was a teacher at a school. She is a lesbian and began regularly experiencing homophobic taunts and abuse by pupils at the school. This mainly took the form of oral abuse, including the use of words such as "dyke". These incidents were reported to the headteacher, who told her that taunts from pupils were an accepted part of the job and she had to "grin and bear it" or she was in the wrong job. The abuse continued and Olivia took sick leave suffering from stress. She never returned to work and eventually had to take ill-health retirement.

What dual discrimination claim could Olivia bring?

  • Sexual orientation discrimination.
  • Sex discrimination.

Explanation

Before legislation was introduced specifically covering sexual orientation discrimination, it was common for individuals who suffered from gender-specific homophobic treatment to bring a claim for unlawful sex discrimination. With the advent of dual discrimination under the Equality Act 2010, a claimant might bring a joint claim for direct sexual orientation and sex discrimination.

Example 6: sexual orientation/sex

Scenario

Simon, who is gay, works in childcare and got a job in a nursery. Shortly after starting, his manager told him that she had received a complaint from a boy's mother who objected to her child being taken to the toilet by a gay man. The nursery manager had told the mother that Simon was a highly qualified employee with an impeccable record. After consulting head office, the manager told Simon that he could not take children to the toilet in future. Simon resigned in protest.

What dual discrimination claim could Simon bring?

  • Sexual orientation discrimination.
  • Sex discrimination.

Explanation

It is highly likely that Simon would win a claim for sexual orientation discrimination, given that the employer decided to give in to the stereotypical views of a customer. However, he could also bring a claim for sex discrimination if he could show that a lesbian childcare professional would not have been treated in the same way.

Example 7: religion or belief/race

Scenario

Assif was the only Muslim in a team of police officers. After a terrorist attack in the UK, his colleagues began to treat him differently. They stopped talking to him and inviting him to workplace social events. One of his colleagues reported him on suspicion that he was a terrorist and he was suspended. Although Assif was later reinstated, he felt that he had become a "pariah" and resigned.

What dual discrimination claim could Assif bring?

  • Religion or belief discrimination.
  • Race discrimination.

Explanation

It is not uncommon for Asians living in Britain to bring separate claims for race and religion or belief discrimination. The introduction of dual discrimination through the Equality Act 2010 would allow such individuals to bring a third claim for combined religion or belief/race discrimination.

Example 8: religion or belief/race

Scenario

Aisha is a Pakistani Muslim who was employed in a factory. She wears a headscarf covering her head and neck in accordance with her religious beliefs. The employer introduced a new dress code policy, which prompted her manager to tell her that she could not wear her headscarf at work because of health and safety concerns. Aisha refused to do so and was suspended. She was later dismissed.

What dual discrimination claim could Aisha bring?

  • Religion or belief discrimination.
  • Race discrimination.

Explanation

Although the main claim here would be for indirect religion or belief discrimination, Aisha might bring a dual discrimination claim for religion or belief and race discrimination under the Equality Act 2010. The introduction of dual discrimination through the Equality Act 2010 would allow such individuals to bring a third claim for combined religion or belief/race discrimination.

Example 9: age/disability

Scenario

Henry is a 62-year-old factory worker and has developed arthritis from repetitive work in a factory, which meant that he had a higher-than-average level of absence. His company had to cut costs and announced that it would have to make redundancies. His manager made an off-the-cuff remark to him immediately after the announcement that it would make sense for him to be made redundant as he was due to retire in three years and he received a higher salary than most of his colleagues. Henry was placed in a redundancy pool with two other workers aged 55 and 58. Henry received the lowest score in the redundancy selection procedure and was made redundant.

What dual discrimination claim could Henry bring?

  • Age discrimination.
  • Disability discrimination.

Explanation

Henry would probably concentrate on an age discrimination claim in these circumstances, but he might have trouble showing that age was a major factor in his redundancy as the two other workers in the pool are not substantially younger than him. If Henry brought a disability discrimination claim, the employer might be able to point to someone else of a similar age with a disability who was not made redundant. However, the combination of age/disability in a dual claim might be more persuasive.

Example 10: disability/sexual orientation

Scenario

James is a heterosexual man who is HIV positive. He told his employer when he joined the company of his HIV-positive status, but did not want his colleagues to know. The employer treated this information in confidence, but a colleague found out and told other employees. James overheard one colleague saying that his illness was a punishment from God for being gay (although he is, in fact, heterosexual). Several colleagues went on to express their fear of being infected and the employer was eventually persuaded to dismiss him.

What dual discrimination claim could James bring?

  • Disability discrimination.
  • Sexual orientation discrimination.

Explanation

The Equality Act 2010 prohibits direct discrimination against a disabled person. It defines disability as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. However, a person with HIV is deemed to have a disability from the point at which he or she is diagnosed as being HIV positive. James could therefore bring a claim for direct disability discrimination.

This could be combined with a claim for direct sexual orientation discrimination under the Equality Act 2010. It does not matter that James is not actually gay, as the Equality Act 2010 covers discrimination by perception. This is where an individual is discriminated against because someone else believes that he or she has a protected characteristic.