This is a preview. To continue reading please log in or Register to read this article

Sex discrimination

Updating author: Tina McKevitt

Summary

  • Sex is a "protected characteristic" under the Equality Act 2010. (See Meaning of sex)
  • As well as being liable for its own actions, there are circumstances in which an employer will be liable for the acts of others. (See Who is liable?)
  • The Equality Act 2010 prohibits direct discrimination, indirect discrimination, victimisation and harassment. (See Prohibited conduct)
  • Direct discrimination is where, because of the protected characteristic of sex, a person treats another person less favourably than that person treats or would treat other persons. (See Direct discrimination)
  • Indirect discrimination occurs where a "provision, criterion or practice" puts one sex at a "particular disadvantage". Under the Equality Act 2010, it is possible for employers to justify indirect discrimination. (See Indirect discrimination and Justification)
  • Harassment is unwanted conduct related to an individual's sex, or conduct of a sexual nature, that has the purpose or effect of violating his or her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her, or less favourable treatment because of a person's rejection of, or submission to, sex-related harassment or harassment of a sexual nature. (See Harassment)
  • Victimisation occurs when a person is subjected to a detriment because he or she did a protected act. (See Victimisation)
  • Employers that apply different clothing or appearance rules to men and women leave themselves open to claims of sex discrimination. (See Dress and appearance requirements)
  • There are some exceptions from unlawful sex discrimination. (See Occupational requirements and Other exceptions)

Future developments

On 18 December 2018, the Government announced a package of proposed measures to tackle sexual harassment at work. The Government stated that it would:

  • introduce a new statutory code of practice on sexual harassment, which will be developed by the Equality and Human Rights Commission;
  • run awareness training with Acas, the Equality and Human Rights Committee, and employers;
  • commission a survey to gather data on the prevalence of sexual harassment;
  • ensure that the public sector takes action to tackle and prevent sexual harassment;
  • work with regulators to check that they are taking appropriate action;
  • consider if further measures are necessary to ensure that vulnerable claimants have appropriate protection in the employment tribunal; and
  • check that the right bodies are included in the list of organisations that can receive whistleblowing information.

On 11 July 2019, the Government published a consultation on sexual harassment in the workplace. The Government is asking for views on:

  • a new mandatory duty on employers to prevent harassment in the workplace;
  • how to strengthen and clarify the law on third-party harassment in the workplace;
  • whether or not there should be additional legal protection for interns and volunteers; and
  • if the employment tribunal time limits for claims under the Equality Act 2010 should be extended.

The consultation closes on 2 October 2019.

Meaning of sex

Sex is a protected characteristic under the Equality Act 2010, which provides that in relation to the protected characteristic of sex, a reference to a person who has a particular characteristic is a reference to a man or to a woman, and a reference to persons who share a protected characteristic is a reference to persons of the same sex (s.11).

As under previous sex discrimination legislation, claims of sex discrimination may be brought by both men and women. However, in accordance with s.13(6)(b) of the Equality Act 2010, where the complainant is a man, no account is to be taken of the special treatment afforded to women in connection with pregnancy or childbirth (see Direct discrimination).

Prior to the implementation of the Equality Act 2010, the express prohibition of discrimination on the grounds of pregnancy and maternity, gender reassignment and marriage and civil partnership was set out in the now repealed Sex Discrimination Act 1975. However, pregnancy and maternity, gender reassignment and marriage and civil partnership all exist as protected characteristics in their own right under the Equality Act 2010 and, as such, are dealt with separately (see Pregnancy and maternity discrimination, Gender reassignment discrimination and Marriage and civil partnership discrimination). "Sex" does not include sexual orientation discrimination which has existed as a protected ground in its own right since 2003 and is also a protected characteristic in its own right under the Equality Act 2010.

Who is protected?

The Equality Act 2010 provides protection against direct and indirect discrimination, harassment and victimisation in the fields of employment and vocational training to:

  • actual and prospective employees;
  • ex-employees;
  • apprentices;
  • some self-employed workers;
  • contract workers;
  • actual and prospective partners in a partnership or a limited liability partnership; and
  • people seeking or undertaking vocational training.

Job applicants are prospective employees and, therefore, protected under the Equality Act 2010. However, in Kratzer v R+V Allgemeine Versicherung AG [2016] IRLR 888 ECJ, the European Court of Justice held that a person who applies for a job with the sole purpose of making an application for compensation for discrimination is not covered by the Equal Treatment Framework Directive (2000/78/EC) or the Equal Opportunities and Equal Treatment Directive (2006/54/EC). Such a person may be considered as having committed an abuse of rights under EU law. Following Kratzer, vexatious discrimination claims will be unsuccessful where the candidate is unable to demonstrate a genuine interest in the position. However, employers will need to consider carefully each recruitment decision, given the potential difficulty in identifying which claims are vexatious.

In Uber BV and others v Aslam and others [2019] IRLR 257 CA, the Court of Appeal held that Uber taxi drivers are "workers" within the meaning of s.230 of the Employment Rights Act 1996 and, as such, are entitled to statutory rights arising from that status. Since the definition of employment in s.83 of the Equality Act 2010 includes, in effect, a wider definition of "worker" than that contained in s.230 of the Employment Rights Act 1996, the drivers would also be covered by discrimination legislation.

It is assumed that a voluntary worker who has a contract to carry out work personally will be protected under the Equality Act 2010. However, in X v Mid Sussex Citizens Advice Bureau and another [2013] IRLR 146 SC, a disability discrimination case, the Supreme Court held that a voluntary worker without a legally binding contract who, accordingly, was not an employee under the now repealed Disability Discrimination Act 1995 was not protected by the Equal Treatment Framework Directive (2000/78/EC) because it is clear that the Directive does not cover voluntary activity. The Supreme Court went on to state that a reference to the European Court of Justice was not justified. In Breakell v Shropshire Army Cadet Force EAT/0372/10, the Employment Appeal Tribunal (EAT) confirmed that a paid volunteer is not an employee within the meaning of s.68(1) of the repealed Disability Discrimination Act 1995 where there is no mutuality of obligation between the parties.

In EAD Solicitors LLP and others v Abrams [2015] IRLR 978 EAT, an age discrimination claim, the sole director and principal shareholder of a limited company brought a discrimination complaint in the name of the company through which he was providing his services (as well as in his own name). The EAT held that a limited company can bring a claim of direct discrimination under the Equality Act 2010. Although a limited company does not itself have the protected characteristics identified in the Equality Act 2010, the EAT held that it could bring a claim of direct discrimination on the ground that it suffered detrimental treatment because of its association with someone having a protected characteristic.

There are special provisions in the Act dealing with office-holders, the police, barristers and advocates, trade organisations, qualifications bodies and employment-service providers. The Act's employment provisions also apply to members of the armed forces.

Additional resources on who is protected?

FAQs

Recipients or (intended) victims of instructions to discriminate

Section 111 of the Equality Act 2010 prohibits a person from instructing, causing or inducing another person to discriminate, harass or victimise a third person. The Equality Act 2010 explanatory notes (on the National Archives website) state that s.111 provides a remedy "for both the recipient of the instruction and the intended victim, whether or not the instruction is carried out, provided the recipient or intended victim suffers detriment as a result". While the express power allowing the intended victim to bring proceedings is new, the express power allowing the recipient of such instructions to bring proceedings is intended to codify the position established in Weathersfield Ltd t/a Van & Truck Rentals v Sargent [1999] IRLR 94 CA (a case decided under the repealed Race Relations Act 1976). Mrs Sargent resigned from her job as a receptionist with a car-hire firm when she was instructed to tell black or Asian callers that there were no cars available for them to hire. The Court of Appeal upheld her claim of race discrimination, stating that she had been less favourably treated than a person willing to carry out the discriminatory policy and that she had been put in an intolerable position as a result.

Discrimination, harassment and victimisation because of sex by trustees and managers of occupational pension schemes are also prohibited by s.61 of the Equality Act 2010.

Employees and workers

"Employment" is defined under s.83(2) of the Equality Act 2010 as meaning: employment under a contract of employment or of apprenticeship or a contract personally to do any work; or employment as a Crown employee or as a "relevant member" of the House of Commons or House of Lords staff. This is an extended definition compared to the one that is used in s.230(3)(b) of the Employment Rights Act 1996 and other employment legislation.

In Windle and another v Secretary of State for Justice [2016] IRLR 628 CA, the Court of Appeal considered the definition of employees "in the extended sense" under s.83(2)(a) of the Equality Act 2010, that is those who are engaged on a contract "personally to do work". The case concerned professional interpreters who undertook work for Her Majesty's Courts and Tribunals Service (HMCTS) on a case-by-case basis, whereby "HMCTS was under no obligation to offer them work; nor were they under any obligation to accept it when offered". The Court of Appeal restored the employment tribunal decision that the interpreters were not employees within the meaning of the Equality Act 2010. The Court of Appeal held that the absence of mutuality of obligation between the parties outside the period during which work is being done may "influence, or shed light on, the character of the relationship within it". The Court of Appeal concluded that "the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense".

In Pimlico Plumbers Ltd and another v Smith [2018] UKSC 29 SC, the Supreme Court noted that, while s.83(2) of the Equality Act 2010 defines "employment" in terms different from those descriptive of the concept of a "worker" under s.230(3)(b) of the Employment Rights Act 1996 (see Workers (in Determining employment status)) and other employment legislation, "this distinction has been held to be one without a difference" and the meaning is essentially the same. In Pimlico, the Supreme Court upheld the employment tribunal decision that a "sub-contracted" plumber was a worker within the meaning of s.230(3)(b) of the 1996 Act and s.83(2)(a) of the 2010 Act because the dominant feature of the plumber's contract was an obligation of personal performance. The tribunal was entitled to conclude that Pimlico Plumbers could not be regarded as a client or customer of the plumber because of its "tight control" over him.

Where a contract described car valeters as sub-contractors, the Supreme Court held that the employment tribunal was entitled to look behind the contractual terms to ascertain the reality of the situation. On the facts, the valeters were held to be employees and/or workers and thus entitled to certain statutory rights (Autoclenz Ltd v Belcher & others [2011] IRLR 820 SC).

However, in Halawi v WDFG UK Ltd T/A World Duty Free [2015] IRLR 50 CA, the Court of Appeal upheld the employment tribunal decision that the claimant did not have "a contract personally to do work" under s.83 of the Equality Act 2010. Ms Halawi provided her services to the end user via a limited company which she had set up for that purpose. On the facts, she did not have any contract with either the first respondent (the end user) or with the second respondent (whose role, according to the Employment Appeal Tribunal (EAT), "was in effect that of an agent supplying workers to a third party to work in retail space controlled by the first respondent"). Dismissing her appeal, the Court of Appeal concluded that there is no incompatibility between s.83(2) of the Equality Act 2010 and EU law on the meaning of employment. It rejected an argument that there was a relationship of employment if the relationship was one of subordination, meaning a relationship of economic dependency and economic value to the enterprise. The Court of Appeal held that it was clear that there must be some obligation to perform work personally.

In Muschett v HM Prison Service [2010] IRLR 451 CA, the Court of Appeal held that an agency worker did not come within the definition of employment in s.78(1) of the now repealed Race Relations Act 1976 because he was not contractually obliged to provide services personally to the end user, HM Prison Service. He was not, therefore, able to bring a claim of race discrimination against it. The decision in Muschett is relevant to age discrimination cases under the Equality Act 2010, because the definition of employment in the Employment Equality (Age) Regulations 2006 (SI 2006/1031) and s.83(2) of the Equality Act 2010 is substantially the same. If employed by the agency, a person in Mr Muschett's position would be protected from discrimination by the end user as a contract worker under the Equality Act 2010.

Whether or not a minister of religion is an employee for the purposes of the Equality Act 2010 will depend on the facts of the case. In Percy v Church of Scotland Board of National Mission [2006] IRLR 195 HL, the House of Lords held that although an associate minister in a parish of the Church of Scotland did not have a "contract of service" she was an employee for the purposes of the (now repealed) Sex Discrimination Act 1975 because she had a "contract personally to execute any work or labour". However, in President of the Methodist Conference v Preston [2013] IRLR 646 SC, the Supreme Court held that, on the particular facts, Ms Preston (who was a Minister in the Redruth Circuit of the Methodist Church until 2009) did not have a contract at all and accordingly could not be an employee under the Employment Rights Act 1996 for the purposes of pursuing an unfair dismissal claim. Although this did not arise on the facts, the absence of a legally binding contract would also have denied employment status to Ms Preston pursuant to the broader definition under the Equality Act 2010. Similarly, in Sharpe v The Bishop of Worcester (in his corporate capacity) [2015] IRLR 663 CA, where a Reverend had brought complaints of unfair dismissal and detriment for "whistleblowing", the Court of Appeal held that there were "no features of the method of Reverend Sharpe's appointment, the duties imposed upon him by law or the means by which he could be deprived of his benefice which would support the existence of a contract between him and either the bishop or the diocesan board of finance".

Illegal contracts

Individuals employed under an illegal contract (eg where there is some form of tax evasion in the way the employee is paid) are not usually allowed, as a matter of public policy, to bring proceedings relying on the contract. However, an illegal contract does not necessarily prevent a claimant from bringing a claim for discrimination.

In Hall v Woolston Hall Leisure Ltd [2000] IRLR 578 CA (a sex discrimination case decided under the repealed Sex Discrimination Act 1975), the Court of Appeal held that the correct approach in cases involving illegality and statutory torts, such as claims for discrimination, required the tribunal to consider if the "claim arises out of or is so inextricably bound up or linked with the illegal conduct that the court could not permit the [claimant] to recover compensation without appearing to condone that conduct". The Court of Appeal held that the employee could proceed with her sex discrimination claim because although she knew that her employer had been defrauding the Inland Revenue by not paying tax on her behalf, she had been powerless to change the situation. In V v Addey & Stanhope School [2004] All ER (D) 561 (Jul) CA (a race discrimination case decided under the repealed Race Relations Act 1976), a contract made with an asylum seeker was found to be illegal because he had falsely indicated in his application form that he did not need a work permit. Applying Hall, the Court of Appeal held that the asylum seeker was prevented from bringing a race discrimination claim because, unlike the facts in Hall, the illegal conduct was that of the employee and the circumstances surrounding his claim were inextricably bound with the illegality of his conduct.

However, in Hounga v Allen and another [2014] IRLR 811 SC) (another race discrimination case decided under the repealed Race Relations Act 1976), the Supreme Court focused its attention on public policy considerations. Ms Hounga was a Nigerian national who obtained a six-month travel visa to the UK having made dishonest declarations as to her age, name and the purpose of her visit. Having no right to work in the UK, she then knowingly entered into an illegal employment contract. Overturning the decision of the Court of Appeal, the Supreme Court held that there was an insufficiently close connection between her immigration offences and her discrimination claims, because "the former merely provided the setting or context in which that tort was committed, and to allow her to recover for that tort would not amount to the court condoning what it otherwise condemns". Lord Wilson (with whom Lady Hale and Lord Kerr agreed) was of the opinion that "the considerations of public policy which militate in favour of applying the defence so as to defeat Miss Hounga's complaint scarcely exist". Observing that Ms Hounga might be regarded as a victim of trafficking, Lord Wilson added that although she had not been compelled to commit a crime, the Court of Appeal's decision to uphold the illegality defence "runs strikingly counter to the prominent strain of current public policy against trafficking and in favour of the protection of its victims". The Court said that "public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront; and Miss Hounga's appeal should be allowed".

The EAT applied Hall in Wijesundera v (1) Heathrow 3PL Logistics Ltd (2) Natarajan EAT/0222/13, in concluding that illegality was no defence to the serious sexual harassment claims brought by Ms Wijesundera. The EAT held that the illegality test in tort "is a test which looks to see whether, on all the facts, and not just simply applying a causation test, the claim is inextricably bound up with the applicant's illegal conduct". With the exception of the dismissal claim, Mr Natarajan's actions "could not be said to be inextricably bound up with the [il]legal conduct, for there is nothing intrinsic about being an employee that leads to sexual harassment or freedom from it". The EAT added that the "fact of employment may have given rise to a practical opportunity for the acts to be committed".

The same approach is likely to be taken with claims of age discrimination under the Equality Act 2010.

Contract workers

These are individuals employed by a third party and whose services are supplied to a principal in furtherance of a contract either between the principal and the individual's employer, or the principal and another third party. It is not necessary for there to be a direct contractual relationship between the principal and the individual's employer.

Vocational trainees

An individual who is undergoing vocational training - defined by s.56 of the Equality Act 2010 as training for employment or work experience - is protected by s.55, which concerns the provision of employment services (including vocational training). In Treasury Solicitor's Department v Chenge [2007] IRLR 386 EAT (decided under the now repealed Race Relations Act 1976), the EAT held that an unpaid vacation placement scheme of 10 days was a work placement or work experience scheme, which was vocational training.

In Blackwood v Birmingham and Solihull Mental Health Foundation Trust EAT/0130/14, the EAT examined the relationship between the employment and the education protections in the Equality Act 2010. Ms Blackwood, a single parent, was a student at Birmingham City University undertaking a Diploma of Higher Education in Mental Health Nursing. As part of her course, she undertook a vocational placement with the trust, which the trust eventually withdrew because Ms Blackwood was unable to work the late night shift patterns due to her childcare commitments. She issued employment tribunal proceedings alleging indirect sex discrimination against both the trust (as a provider of vocational training) and the university as its alleged agent. The proceedings against the university were discontinued when it contended that it had to be sued in the County Court. The employment tribunal went on to hold that it lacked jurisdiction to hear the claim against the trust because Ms Blackwood's placement with the trust was arranged by the university, where she was a student. Accordingly, it was clear from s.56(5) of the Equality Act 2010 that her case against the trust fell within the education provisions of the Act and must be pursued in the County Court. The tribunal's reasoning was that Ms Blackwood was undertaking training or guidance "to which the governing body" of the university had "power to afford access". In this respect the tribunal interpreted "power" as "the ability to do something", and noted that the university was "clearly able to provide students with placements in hospital trusts" and had so placed Ms Blackwood. The EAT dismissed Ms Blackwood's appeal. However, the Court of Appeal overturned the EAT decision and held that s.56(5) should be construed so as to give effect to the Equal Treatment Framework Directive (2000/78/EC). The starting point is to identify whether the claim concerns discriminatory access to a work placement or whether it concerns discrimination occurring during the work placement. If the claim was that the university had failed to provide a work placement at all or had provided a work placement in a discriminatory way, such a claim could be brought only in the county court, under s.91 of the Equality Act 2010. In contrast, where the claim concerns discrimination by the work placement provider, in this case the trust, this should be brought under s.55 of the Equality Act 2010 and, therefore, in the employment tribunal. Where the alleged act of discrimination is committed by the provider as the agent of the university, the Court of Appeal held that "both the provider and the university will be liable by virtue of ss.109(2) and 110(1) [of the Equality Act 2010] respectively, but the liability will still arise under s.55, so that the employment tribunal will still be the correct forum whether the claimant chooses to proceed against only one of them or against both". The Court of Appeal concluded that "s.56(5) did not in this case operate to deprive the employment tribunal of jurisdiction to determine the appellant's complaint" (Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust [2016] IRLR 878 CA).

In X v Mid Sussex Citizens Advice Bureau and others [2011] EWCA Civ 28 CA, the Court of Appeal held that an unpaid volunteer at the Citizens Advice Bureau was not undertaking vocational training within the meaning of the Equal Treatment Framework Directive (2000/78/EC).

Territorial scope

The Equality Act 2010 is silent as to the territorial scope of its employment provisions. The Equality Act 2010 explanatory notes (on the National Archives website) explain that this follows the precedent of the Employment Rights Act 1996 by leaving it "to tribunals to determine whether the law applies, depending for example on the connection between the employment relationship and Great Britain". This means that case law determining the territorial scope of the Employment Rights Act 1996 is relevant in determining the territorial scope of the Equality Act 2010 (see Employees excluded from the right (in Unfair dismissal)).

This approach was adopted in Clyde & Co LLP and another v Bates Van Winkelhof [2012] EWCA Civ 1207 CA. The Court of Appeal considered whether or not the employment tribunal had jurisdiction to hear claims of sex discrimination and/or pregnancy discrimination made by a former partner in a limited liability partnership, who "worked primarily outside the jurisdiction in Tanzania". The Court of Appeal referred to several authorities, which mainly addressed the territorial scope of certain claims under the Employment Rights Act 1996. Summarising the principles from case law, the Court of Appeal reaffirmed that, where the employee "is employed wholly abroad", it will be appropriate for the tribunal "to carry out a comparative exercise in which the factors which point towards a connection with Great Britain are compared with the factors pointing in favour of another jurisdiction". However, where the employee "lives and/or works for at least part of the time in Great Britain", as in the case of Ms Bates Van Winkelhof, it is not necessary to apply the comparative test as between the two jurisdictions. In the latter situation, the tribunal must be satisfied that the connection is "sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim" (Ravat v Halliburton Manufacturing and Services Ltd [2012] IRLR 315 SC). In Clyde & Co LLP, the Court of Appeal held that the tribunal was not required to carry out the comparative exercise and was correct in deciding that it had jurisdiction to hear the discrimination claims.

The test established under the Employment Rights Act 1996 may not be wide enough for the purposes of discrimination law rights, many of which are derived from European Union law. This was recognised in Bleuse v MBT Transport Ltd and another [2008] IRLR 264 EAT in which the Employment Appeal Tribunal (EAT) stated that, in respect of contracts governed by English law "an English court properly exercising jurisdiction must seek to give effect to directly effective rights derived from an EU Directive by construing the relevant English statute, if possible, in a way which is compatible with the right conferred". While acknowledging this issue, the Court of Appeal declined to address it in Clyde & Co LLP and another v Bates Van Winkelhof [2012] EWCA Civ 1207 CA as it was not necessary for its decision.

However, in R (on the application of Hottak and another) v Secretary of State for Foreign and Commonwealth Affairs and another [2016] IRLR 534 CA, the Court of Appeal did not consider that Parliament had intended the territorial scope of the employment-related discrimination provisions in part 5 of the Equality Act 2010 to extend further than the territorial reach of s.94(1) of the Employment Rights Act 1996 (ie the provisions on unfair dismissal). R (on the application of Hottak and another) concerned two Afghan nationals who were "locally employed staff" in Afghanistan and who sought judicial review of alleged discriminatory failures by the respondents. The Court of Appeal concluded that the fact that the claims were for discrimination did not require the court to "look upon the territoriality problems with greater sympathy than if they were unfair dismissal claims". The Court of Appeal added that "the cases in which s.94(1) (and therefore part 5) will extend to the employment contract of the foreign based employee are…truly exceptional".

In Ministry of Defence v Wallis and another [2011] EWCA Civ 231 CA, the Court of Appeal held that the employment tribunal was correct to decide that it had jurisdiction to hear claims of unfair dismissal and sex discrimination by two British employees who worked for the Ministry of Defence (MoD) in Belgium and the Netherlands. It stated that: "the claimants were employed by the MoD overseas in unusual circumstances that connected their employment with Great Britain to a degree that was sufficiently strong to bring them within the scope of protection of the British unfair dismissal legislation". The Court of Appeal also held that Mrs Wallis was entitled to effective judicial protection of her directly enforceable rights under the Equal Treatment Directive (76/207/EEC) (now the recast Equal Opportunities and Equal Treatment Directive (2006/54/EC)).

In Duncombe and others v Secretary of State for Children, Schools and Families (No. 2) [2011] IRLR 840 SC, the Supreme Court held that teachers who were employed in European schools outside Great Britain were entitled to bring unfair dismissal claims because they had an "overwhelmingly closer connection with Britain and with British employment law than with any other system of law".

In Pervez v Macquarie Bank Ltd (London Branch) and another [2011] IRLR 284 EAT, the EAT rejected the proposition that while an employee who was seconded to work in London by a Hong Kong-based employer was notionally protected under the Employment Rights Act 1996, the employment tribunal lacked jurisdiction to hear the employee's complaint because reg.19(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) requires that "the respondent ... resides or carries on business in England and Wales". Overturning the tribunal on this point, the EAT held that "in the particular context of reg.19 a company can 'carry on business' in England and Wales by seconding an employee to work at an establishment here, even if the supply of workers to third parties is not part of its ordinary business".

In Fuller v (1) United Healthcare Services Inc (2) Radkiewicz EAT/0464/13, where, according to the EAT, the employment tribunal found on the facts that an "employment relationship was overwhelmingly American in nature and that the work carried out in the UK did not alter that" the tribunal was correct to hold that the situation "was not within the territorial reach of … the Equality Act 2010".

In Jeffery v British Council; Green v SIG Trading Ltd [2019] IRLR 123 CA, the Court of Appeal dismissed the appeal and upheld Jeffery v The British Council [2016] IRLR 935 EAT. In Jeffery, the employee, who worked on a "truly expatriate" basis, latterly as a teaching centre manager in Bangladesh, was found by the EAT to have an "overwhelmingly closer connection with Great Britain and with British employment law than any other system" and was therefore able to pursue his claims under the Equality Act 2010. The main factors that the EAT identified that established "a quite exceptional degree of connection with Great Britain and British employment law" are set out below:

  • The employee was "a UK citizen recruited in the UK to work for a UK organisation".
  • The contract of employment provided for English law to apply.
  • The employee was entitled to a civil service pension, which the EAT commented was "a remarkable feature to find in the contract of employment of an expatriate employee". The EAT observed that this "[created] another strong link to the UK and to UK employment law".
  • The employee's "salary was subject to a notional deduction for UK income tax to maintain comparability with the position if he were working in the UK". The EAT again commented that this was "an exceptional provision to find in the contract of an expatriate employee".
  • The "nature of the Respondent ... [which is] recognised as playing such a part in the life of the nation that it is right to afford a civil service pension to their employees".

The Equality Act 2010 contains a power to specify the territorial application of its employment provisions in relation to ships, hovercraft and offshore work. The Equality Act 2010 (Offshore Work) Order 2010 (SI 2010/1835) applies part 5 of the Act - which sets out the provisions relating to work - to offshore work, replacing similar provisions in previous legislation. The order does not apply to ships in navigation or those engaged in fishing or dredging. The Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 (SI 2011/1771) prescribe the circumstances in which part 5 of the Equality Act 2010 applies to seafarers working on UK ships and hovercraft, or on ships and hovercraft from other EEA states. In Hasan v Shell International Shipping Services (Pte) Ltd and others EAT/0242/13, Mr Hasan, a British national with a British passport, whose normal place of residence (when not on board ship) is in England, failed in his attempt to pursue a race discrimination claim against the respondents. The EAT upheld the tribunal decision that, on the facts of Mr Hasan's employment, it lacked jurisdiction to hear his claim.

Further guidance on the territorial scope of the Act appears in chapter 10 of the Employment statutory code of practice (on the EHRC website).

Who is liable?

Those who may be liable for prohibited conduct under the Equality Act 2010 include:

  • Employers, in relation to job applicants, employees, ex-employees (in some cases), where:
    • the employer discriminates against a job applicant, or discriminates against, harasses or victimises an employee in its employment;
    • the employer's employees discriminate against a worker during the course of their employment, unless the defence of having taken "all reasonable steps" to prevent discrimination applies; or
    • the employer's agent discriminates, unless the reasonable steps defence applies.
  • Employees who discriminate during the course of their employment, who will be personally liable even if the employer has a defence.
  • Principals (ie those who make work available for individuals employed by someone else) when:
    • they discriminate against contract workers; or
    • the principal's agent discriminates.
  • A person who knowingly helps another person to do an unlawful act of discrimination.

Employers

Employers are liable under the Equality Act 2010 for direct and indirect sex discrimination and victimisation in relation to recruitment, terms and benefits, detrimental treatment during employment, and dismissal. Employers are also liable for harassment of job applicants and employees and, in some circumstances, for discrimination, harassment or victimisation after employment. The act of discrimination, harassment or victimisation may be:

  • done by the employer itself;
  • done by its employees in the course of their employment, whether or not the act is done with the employer's knowledge or approval; or
  • done by an agent of the employer with the express or implied authority of the employer (whether given before or after the act).

Employers will have a defence against an act done by one of their employees or agents if they can show that they took all reasonable steps to prevent such conduct (see Reasonable steps defence).

Prior to 1 October 2013, the employer could be liable under s.40(2) to (4) of the Equality Act 2010 for an act done by a third party against an employee who (the employer knew) had been subjected to third-party harassment on at least two previous occasions where the employer had failed to take reasonably practicable steps to prevent it. However, s.40(2) to (4) was repealed with effect from 1 October 2013 (see Third parties for further information).

Employers' liabilities for employees' acts

An employer will be liable for discrimination, harassment or victimisation carried out by employees in the course of employment unless the employer has taken all reasonable steps to prevent such conduct. Using arguably stronger wording than under previous legislation, the Equality Act 2010 states that anything done by an employee in the course of employment "must be treated as also done by the employer". "Course of employment" has been interpreted widely in race and sex discrimination cases. In Jones v Tower Boot Co Ltd [1997] IRLR 168 CA, a racial harassment case decided under the now repealed Race Relations Act 1976, the Court of Appeal held that "in the course of employment" could cover even acts of torture to which workers had subjected a colleague in the workplace. The term should be interpreted in the broad sense in which it is employed in everyday speech. It may cover discrimination that occurs outside work provided that there is a close link to the work, eg a work outing, a Christmas party or a work trip abroad.

In Chief Constable of the Lincolnshire Police v Stubbs and others [1999] IRLR 81 EAT, the Employment Appeal Tribunal (EAT) upheld a finding that two incidents that occurred in a pub after work occurred in the course of employment and were unlawful under the now repealed Sex Discrimination Act 1975. The tribunal had held that the incidents were connected to work and the workplace; they would not have happened but for the applicant's work; and work-related social functions are an extension of employment. The EAT said that when there is a social gathering of work colleagues it is appropriate for a tribunal to consider whether or not the circumstances show that what was occurring was an extension of their employment. Whether a person is or is not on duty and whether or not the conduct occurred on the employer's premises are two of the factors that will need to be considered by the tribunal, but are not conclusive. Each situation is a question of fact for the tribunal.

In Forbes v LHR Airport Ltd EAT/0174/18, a racial harassment case, one of the claimant's colleagues shared an image of a golliwog on her Facebook account. The claimant was not a Facebook friend of the colleague, but another employee brought it to his attention. The EAT upheld the tribunal decision that the employer was not vicariously liable for racial harassment because the claimant's colleague had not been acting in the course of her employment when she shared the image. The EAT held that a lay person would not consider that the sharing of an image on a private, non-work Facebook page, with a list of friends that included very few colleagues, was an act done "in the course of employment". Other relevant factors were that she was not at work when the image was posted, her post made no reference to the employer or any of its employees, and she did not use the employer's equipment when sharing the image.

In Mohamud v WM Morrison Supermarkets plc [2016] IRLR 362 SC, a case that may have implications for discriminatory behaviour by employees towards colleagues or third parties, the Supreme Court held that the employer was vicariously liable for a violent assault on a customer by one of its employees. The Supreme Court noted that the case addressed the question of in what manner the conduct of an individual has to be related to the relationship between that individual and the defendant employer for vicarious liability to be imposed on the employer. In Mohamud, the Supreme Court held that the employee's actions, although a gross abuse of his position, were "in connection with the business in which he was employed to serve customers" and that the employer "should be held responsible".

In Bellman v Northampton Recruitment Ltd [2019] IRLR 66 CA, a personal injury case that may also have implications for discriminatory behaviour by employees towards colleagues or third parties, the Court of Appeal held that an employer was vicariously liable for a managing director's assault of an employee during a drinking session after the work Christmas party. Following the principles in Mohamud v WM Morrison Supermarkets plc [2016] IRLR 362 SC, the Court found that the employee, as managing director, was authorised to act on behalf of his employer and that he had been given a wide remit. In the Court's view, there was "sufficient connection" between his field of activities and the assault to render it just that the employer should be vicariously liable for the managing director's actions.

In Unite the Union v Nailard [2016] IRLR 906 EAT, the EAT considered the union's liability for sexual harassment by two of its elected branch officers against a paid employed officer. The EAT held that the officers were not employees in the extended sense under s.83(2)(a) of the Equality Act 2010 and were not engaged on a contract "personally to do work". However, the EAT concluded that the officers were acting as agents of the union and that, as a result, the union was liable under s.109 of the Equality Act 2010 for the sexual harassment of the claimant by the officers. Referring to s.109(3) of the Equality Act 2010, the EAT stated that "the fact that the principal would disapprove does not prevent the agent's act being treated as done by the principal".

Additional resources on employers' liabilities for employees' acts

FAQs

Policies and documents

"How to" guidance

Third parties

An employer may be liable in connection with a third party's conduct towards an employee if the employer fails to intervene to prevent or stop the conduct because of the employee's sex. In Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL, the House of Lords said that an employer will not be liable for subjecting an employee to discrimination by a third party other than an employee, unless the reason for the failure to take action to prevent or reduce the discrimination is related to the employee's sex, race, etc, or the third party was acting as the employer's agent. Macdonald was decided under the repealed Sex Discrimination Act 1975 but employers would be advised to assume that they should protect employees from all types of discrimination by third parties.

In a case that may have implications for discriminatory behaviour by third parties, the Supreme Court held that the Ministry of Justice was vicariously liable for the conduct of a prisoner whose negligence caused a prison officer employee to suffer a back injury while working in the prison kitchen (Cox v Ministry of Justice [2016] IRLR 370 SC). The Supreme Court noted that the case addressed the question of "what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual".

Prior to 1 October 2013, an employer could be liable under s.40(2) to (4) of the Equality Act 2010 if an employee was harassed by a third party during the course of employment, in circumstances where the employer knew that the employee concerned had been subjected to such "third-party" harassment on at least two other occasions (whether by the same or a different third party) but had failed to take reasonably practicable steps to prevent it. The third-party harassment provisions in the Equality Act 2010 were repealed with effect from 1 October 2013 by s.65 of the Enterprise and Regulatory Reform Act 2013, but the repeal does not apply "for the purposes of proceedings that relate to a contravention occurring before" the coming into force of s.65 on 1 October 2013. It would appear that the proceedings did not need to be ongoing as at 1 October 2013. The explanatory note to the Enterprise and Regulatory Reform Act 2013 (Commencement No.3, Transitional Provisions and Savings) Order 2013 (SI 2013/2227) (which is the Order that commenced s.65 of the 2013 Act) states that the effect of the third-party harassment provisions in the Equality Act 2010 is saved "for contraventions of the provisions before 1 October 2013".

Additional resources on third parties

FAQs

"Reasonable steps" defence

An employer will have a defence to anything done by one of its employees in the course of employment if it can prove that it took all reasonable steps to prevent the employee from doing that thing, or from doing anything of that description. Guidance from sex and race discrimination cases suggests that having an appropriate policy covering the type of behaviour, such as an equal opportunities or dignity at work policy, will be an essential part of proving a reasonable steps defence but will be insufficient in itself. The policy must be properly implemented, which will include making employees aware of the policy and the provision of training. If a particular risk has been identified, eg from a particular employee, some additional steps may be required if the employer is to be able to establish a reasonable steps defence to any act of discrimination by that employee: Canniffe v East Riding of Yorkshire Council [2000] IRLR 555 EAT. Canniffe was decided under the repealed Sex Discrimination Act 1975, which required employers to take "such steps as were reasonably practicable" (as opposed to "all reasonable steps") to prevent the employee's conduct. It remains to be seen whether or not the omission of the word "practicable" from s.109(4) of the Equality Act 2010 will have any effect on the availability of the defence.

Additional resources on "reasonable steps" defence

Policies and documents

Liability for and of agents

An employer may also be liable for discrimination, harassment or victimisation carried out by its agents, such as an employment agency through whom members of staff are appointed. In this context, the employer is referred to as "the principal", which has a different meaning to a person who engages the services of a worker who is employed by someone else (see Principals below). It does not matter whether or not the employer knew of or approved the agent's conduct. In Lana v Positive Action Training in Housing (London) Ltd [2001] IRLR 501 EAT, (a case decided under the repealed Sex Discrimination Act 1975 which, prior to the implementation of the Equality Act 2010, covered discrimination on the grounds of pregnancy and maternity) the respondent placed the claimant with a company, which terminated the arrangement soon after the claimant said that she was pregnant. The respondent then terminated its training contract as it did not have any work for the claimant. The EAT held that the respondent, which had agreed to provide the claimant with work experience, and contracted with another company (its agent) to provide her with a work experience placement, would be liable itself if its agent had terminated the work experience placement because the trainee was pregnant. The agent had the authority to terminate the engagement of the trainee and, if that were done in circumstances in which it constituted discrimination, the principal would be liable. The agent would also be liable. The same principles would be applicable to a sex discrimination case under the Equality Act 2010.

In Bungay and others v Saini and others EAT/0331/10 (decided under the repealed Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660)), the EAT followed the approach adopted in Lana v Positive Action Training in Housing (London) Ltd [2001] IRLR 501 EAT, holding that Mr Bungay and Mr Paul (the other appellant) "were managing the centre as part of their authority as its directors and so the tribunal was entitled to conclude that [they] were acting as its agents even though they performed their duties in a discriminatory manner".

In Commissioner of Police of The Metropolis v Weeks EAT/0130/11, the EAT upheld the employment tribunal decision that a civilian employee who alleged that she had been subjected to sex discrimination by a police officer (who it seems was not to be regarded as an employee in the circumstances, under s.17 of the now repealed Sex Discrimination Act 1975) was entitled to rely on s.41(2) of the Sex Discrimination Act 1975, which provided that: "Anything done by a person as agent for another person with the authority ... of that other person shall be treated for the purposes of this Act as done by that other person as well as by him", to bring her claim against the Commissioner of Police. As the EAT observed, the Equality Act 2010 (in s.42) retains the same principles with regard to the police (in s.17 of the Sex Discrimination Act 1975) and (in s.109) with regard to the liability of employers and principals (in s.41(2) of the Sex Discrimination Act 1975).

An employer's potential liability for acts committed by an agency worker in its workforce was considered by the EAT in Mahood v Irish Centre Housing Ltd EAT/0228/10. The EAT stated that: "an employer would be liable for the acts of an agency worker exercising authority, or controlled by the [employer] or who has the [employer's] authority to do the acts in question where those acts are done in a discriminatory manner but are just as capable of being done in a lawful manner". The EAT remitted the case to the same employment tribunal to reconsider it on this basis. Mahood was decided under the repealed Race Relations Act 1976 and the repealed Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) but the principle is likely to remain relevant under the Equality Act 2010.

In Kemeh v Ministry of Defence [2014] EWCA Civ 91 CA (decided under the Race Relations Act 1976), Mr Kemeh, a cook in the British army, was racially abused in the mess by Ms Ausher who was a civilian employed by Sodexo as a butcher. The Court of Appeal noted that the material agency provisions of the repealed Race Relations Act 1976 were "almost identical" to those in the Equality Act 2010, and found that the Ministry of Defence (MoD) could not be held liable for Ms Ausher's conduct, stating that: "Whatever the precise scope of the legal concept of agency, and whatever difficulties there may be of applying it in marginal cases, I am satisfied that no question of agency arises in this case. In my view, it cannot be appropriate to describe as an agent someone who is employed by a contractor simply on the grounds that he or she performs work for the benefit of a third party employer. She is no more acting on behalf of the employer than his own employees are, and they would not typically be treated as agents" - although in some circumstances they might be. The Court of Appeal held that "Ms Ausher's contract with Sodexo is the source of any authority she has to make decisions relating to the butcher's department in the mess. It may be ... that ultimately the MoD would have the right to veto her presence, at least for good reason. But that limited degree of control comes nowhere near constituting an authorisation by the MoD to allow Ms Ausher to act on its behalf with respect to third parties." Recognising that this probably left Mr Kemeh without a cause of action the Court of Appeal commented that "Parliament may wish to consider this lacuna, although if it provides a remedy, it will have to decide whether it is the immediate employer rather than the end user of the services who should bear the legal responsibility."

In Unite the Union v Nailard [2016] IRLR 906 EAT, the EAT upheld the employment tribunal decision that two elected branch officers were acting as agents for the union because they carried out work on its behalf "in their dealings with local members, officers, other trade unions and employers". Consequently, the EAT upheld the tribunal decision that the union was liable under s.109 of the Equality Act 2010 for the sexual harassment of the claimant (a union employee) by its elected officers.

In Peninsula Business Service Ltd v Baker [2017] IRLR 394 EAT, the employer (the "principal") arranged for a third party (the "agent") to conduct covert surveillance of an employee. When the employee was informed of this, he alleged that the surveillance had been arranged in response to protected acts he had done, and that it amounted to victimisation. The agent was unaware of any of the alleged protected acts. The EAT acknowledged that s.109(2) of the Equality Act 2010 provides that anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. The EAT went on to state that s.109 "only makes the principal liable for a breach of the [Equality Act 2010] ... if what the agent does is, itself, a breach of the Act". As the agent had not victimised the employee, the EAT held that the principal could not be held liable either.

Personal liability of employees

Section 110 of the Equality Act 2010 expressly provides that an employee will be personally liable for acts of discrimination, harassment or victimisation carried out against other workers during the course of his or her employment. This reflects the previous position as demonstrated in cases such as Yeboah v Crofton [2002] IRLR 634 CA, which was decided under the now repealed Race Relations Act 1976, but as the Equality Act 2010 explanatory notes (on the National Archives website) make clear, s.110 "take[s] a more direct approach". Thus, an employee may be named as a respondent in a discrimination claim and be ordered to pay compensation even if the employer can show that it satisfied the reasonable steps defence. In Gilbank v Miles [2006] IRLR 538 CA, a case decided under the repealed Sex Discrimination Act 1975, an award of £25,000 was made personally against a manager (who was a director and the main shareholder of the company) after she discriminated against a pregnant employee. In Allaway v Reilly and another [2007] IRLR 864 EAT (also decided under the repealed Sex Discrimination Act 1975), the EAT in Scotland held that an individual will be liable even when discrimination is not a motive or intention. It is enough that, on the evidence, the conclusion can be drawn that discrimination as the probable outcome was within the scope of the individual's knowledge at that time.

It is not necessary to show that the employee knew that the act was unlawful, but liability will be avoided if the employee is able to establish that he or she reasonably relied on a statement by the employer that the act was not unlawful (s.110(3) of the Equality Act 2010).

Section 110(5A) of the Equality Act 2010 (inserted by s.2 of the Marriage (Same Sex Couples) Act 2013)) provides that an individual (A) will not be personally liable under s.110 if A, for the reason that the marriage is the marriage of a same-sex couple:

  • does not conduct a relevant marriage;
  • is not present at, does not carry out, or does not otherwise participate in, a relevant marriage, or
  • does not consent to a relevant marriage being conducted

Pursuant to s.110(5B), the exemption applies only if A is within the meaning of "person" for the purposes of s.2 of the Marriage (Same Sex Couples) Act 2013, in which "person" includes a religious organisation but does not include a registrar, a superintendent registrar or the registrar general.

Under s.2(4) of the Marriage (Same Sex Couples Act) 2013, a "relevant marriage" includes "marriage in a place of worship or in another place according to religious rites or usages".

In Barlow v Stone EAT/0049/12 (decided under the repealed Disability Discrimination Act 1995), Mr Barlow issued disability discrimination proceedings against his employer. Mr Barlow's colleague, Mr Stone, then made a complaint about Mr Barlow to the police. Mr Barlow alleged that this was an act of victimisation perpetrated by both Mr Stone and their mutual employer. However, proceedings were not issued against the employer in relation to this issue. Overturning the employment tribunal decision, the EAT held that the tribunal had jurisdiction to hear Mr Barlow's victimisation claim against Mr Stone even though Mr Barlow had not issued proceedings against the employer in relation to this issue.

Trustees and managers of occupational pension schemes

The Equality Act 2010 prohibits discrimination, harassment and victimisation by trustees and managers of occupational pension schemes, and by employers whose employees are, or may be, members of such a scheme.

Principals

A principal is defined, by s.41(5) of the Equality Act 2010, as a person who, under a contract to which the principal is a party, makes work available for an individual who is employed and supplied by another person (whether or not that other person is a party to the contract). The Act therefore codifies existing case law by making it clear that there does not have to be a direct contractual relationship between the principal and the employer of the contract worker as established in Abbey Life Assurance Co Ltd v Tansell [2000] IRLR 387 CA (a case decided under the now repealed Disability Discrimination Act 1995).

Principals are liable under the Equality Act 2010 for sex discrimination or victimisation in whether to allow the contract worker to do, or continue to do, the work, in the terms on which the worker is allowed to do the work, in relation to access to benefits, or in relation to any other detrimental treatment, including some discrimination after the working relationship has come to an end. Principals are also liable for harassment of contract workers, which may extend to conduct after the working relationship has ended. The act of discrimination may be:

  • done by the principal itself;
  • done by the principal's employees in the course of their employment, whether or not the acts are done with the principal's knowledge or approval; or
  • done by an agent of the principal with the express or implied authority of the principal (whether given before or after the act).

The same approach to "course of employment", the "reasonable steps" defence to acts done by the principal's employees and liability for the acts of an agent will apply as described above. In addition, the individual will be protected from discrimination by his or her employer.

Employees, agents and others who "knowingly help" contraventions of the Equality Act 2010

Under s.112 of the Equality Act 2010, it is unlawful to knowingly help someone to discriminate against, harass or victimise another person or to knowingly help to instruct, cause or induce discrimination. In certain circumstances liability for such conduct may extend beyond the end of the employment relationship. Liability is avoided if it can be established that reasonable reliance was placed on a statement by the person to whom assistance was given to the effect that the act was not unlawful. The Equality and Human Rights Commission (EHRC) has published guidance in the form of the Employment statutory code of practice (on the EHRC website), which cites the example of a clerical worker who is asked by a company manager, who wishes to be surrounded by female staff, to let him know the sex of all of the applicants for a particular post so that he may filter out the male candidates, in circumstances where such information is not apparent from the application forms in accordance with the company's equal opportunities policy. The EHRC considers that "it may be unlawful for the clerical worker to give the manager this help" even if the manager were unsuccessful in his attempt to exclude male applicants.

While the wording in the Equality Act 2010 (ie knowingly help) differs to that used in previous discrimination legislation (ie knowingly aid) the principles established in previous case law may remain relevant. In Anyanwu and another v South Bank Students' Union and South Bank University [2001] IRLR 305 HL, a case which concerned the phrase "knowingly aid" from the now repealed Race Relations Act 1976, the claimants, two black students who were employed by the student union, claimed that the university aided their dismissal by the student union when the university expelled them and barred them from the union premises. The House of Lords held that a person aids another if the person helps or assists, or cooperates or collaborates with him or her. It does not matter who the "prime mover" is. Aiding must be done knowingly. It requires more than a general attitude of helpfulness or cooperation; it must be shown that another is aided to do the unlawful act in question: Hallam and another v Cheltenham Borough Council and others [2001] IRLR 312 HL (also decided under the repealed Race Relations Act 1976). In Gilbank v Miles [2006] IRLR 538 CA, an award of £25,000 was made personally against a manager (who was a director and the main shareholder of the company) after she discriminated against a pregnant employee, contrary to the now repealed Sex Discrimination Act 1975.

Others who may be liable

The Equality Act 2010 has special provisions setting out the circumstances in which other bodies may be liable for discrimination, harassment and victimisation, including:

  • partnerships or proposed partnerships (s.44);
  • limited Liability Partnerships (LLPs) or proposed LLPs (s.45);
  • employment-service providers (s.55); and
  • barristers (s.47).

In Michalak v General Medical Council and others [2018] IRLR 60 SC, the Supreme Court held that the employment tribunal had jurisdiction to hear a claim against a qualification body (the General Medical Council) in respect of discrimination committed in the course of the body carrying out its functions. The availability of judicial review did not preclude this because that process does not constitute "proceedings in the nature of an appeal" for the purposes of s.120(7) of the Equality Act 2010. (Section 120(7) of the Act excludes from the jurisdiction of the employment tribunal, cases concerning qualification bodies where the discriminatory act complained of may, by law, "be subject to an appeal or proceedings in the nature of an appeal".)

Prohibited conduct

The Equality Act 2010 prohibits the types of conduct listed below.

  • Direct discrimination, ie less favourable treatment because of the protected characteristic of sex. This covers less favourable treatment because of a person's association with someone who has or is believed to have the protected characteristic ("discrimination by association"), or because a person is wrongly thought to have the protected characteristic ("discrimination by perception") (see Direct discrimination).
  • Indirect discrimination, ie where a person of one sex and others of the same sex are, or would be, disadvantaged by the unjustified application of a provision, criterion or practice (PCP) when compared with others to whom the PCP is, or would be applied, and who are not of that sex (see Indirect discrimination and Justification).
  • Harassment, ie unwanted conduct related to sex or of a sexual nature that has the purpose or effect of violating the victim's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her, or less favourable treatment because of a person's rejection of, or submission to, sex-related harassment or harassment of a sexual nature. (see Harassment).
  • Victimisation, ie where a person is subjected to detriment because he or she has done, or the employer believes that he or she has done, or may do, a "protected act" (see Victimisation).

Prohibited conduct in the employment context

As with previous discrimination legislation, prohibited conduct as defined in the Equality Act 2010 is unlawful only if it occurs in specified circumstances. In the employment context, part 5 of the Equality Act 2010 prohibits discrimination and victimisation in the fields of employment and vocational training.

Under s.39(1) and (3) of the Act, an employer (A) must not directly or indirectly discriminate against, or victimise a person (B):

  • in the arrangements A makes for deciding to whom to offer employment;
  • as to the terms on which A offers B employment; or
  • by not offering B employment.

Under s.39(2) and (4) of the Act, an employer (A) must not directly or indirectly discriminate against, or victimise an employee of A's (B):

  • as to B's terms of employment;
  • in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training, or for receiving any other benefit, facility or service;
  • by dismissing B; or
  • by subjecting B to any other detriment.

Under s.40 of the Act, it is also unlawful for an employer (A) in relation to employment by A, to harass a person (B):

  • who is an employee of A's; or
  • who has applied to A for employment.

Under s.41 of the Act, direct and indirect discrimination and victimisation by principals is unlawful:

  • as to the terms on which the principal allows the contract worker to do work;
  • by not allowing a contract worker to do, or continue to do, the work;
  • in the way the principal affords the contract worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; or
  • by subjecting the contract worker to any other detriment.

It is also unlawful for a principal to harass a contract worker.

In X v Mid Sussex Citizens Advice Bureau and others [2011] EWCA Civ 28 CA, a disability discrimination case with implications for comparable sex discrimination cases, the Court of Appeal upheld the employment tribunal's decision that the employer's volunteering arrangements did not constitute "arrangements which [the employer] makes for the purpose of determining to whom he should offer employment" under the now repealed Disability Discrimination Act 1995.

"Detriment" is likely to be interpreted in the same way as it was in sex and race discrimination cases decided under the repealed Sex Discrimination Act 1975 and Race Relations Act 1976, of which the following are examples. An individual can suffer a detriment even if he or she was unaware of the conduct complained of at the time: Garry v London Borough of Ealing [2001] IRLR 681 CA. Being subject to a "detriment" was interpreted as meaning put at a disadvantage: Jeremiah v Ministry of Defence [1979] IRLR 436 CA. In Bayode v The Chief Constable of Derbyshire EAT/0499/07, the EAT agreed with the employment tribunal that the mere act of making a written record could not give rise to a justified sense of grievance on the part of the claimant so as to constitute a detriment. No physical or economic consequence is necessary: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL. Hurt feelings may be enough for there to be detriment, at least provided that the victim's view of the treatment is not unreasonable or unjustified. In a case decided under the now repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031), Keane v Investigo and others EAT/0389/09, the EAT upheld an employment tribunal finding that a job applicant whose applications were not genuine had not suffered a detriment. Therefore her claims for direct and indirect age discrimination failed. Similarly, in Cordant Security Ltd v Singh and another [2016] IRLR 4 EAT, the EAT held that an employee did not suffer a detriment by reason of his employer's failure to investigate an allegation of race discrimination because the "allegation was fabricated" and, had it been investigated, "it would have been found to be untrue". Although the employment tribunal was entitled to conclude on the evidence that the employer's failure to investigate amounted to less favourable treatment because of race, the employee's claim that it amounted to unlawful direct discrimination in breach of s.39(2)(d) of the Equality Act 2010 (the requirement not to subject an employee to a detriment) failed at the EAT because he was required to establish both less favourable treatment and that he had been subjected to a detriment.

A gay employee was subjected to a detriment when, while looking through an archived file, he discovered homophobic comments in a memo that he had not been intended to see (Bivonas LLP and other v Bennett EAT/0254/11). Although Bivonas LLP was decided under the repealed Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) it is relevant to discrimination cases decided under the Equality Act 2010.

The detriment to which an employee is subjected under s.39 of the Equality Act 2010 must occur in the employment field. In London Borough of Waltham Forest v Martin EAT/0069/11 (which was decided under the now repealed Race Relations Act 1976, but is likely to remain relevant under the Equality Act 2010), the EAT held that a local authority's decision to instigate a criminal prosecution against a resident, who was also one of its employees, for alleged benefit fraud was not a matter that fell within the employment field. Accordingly, the employment tribunal had no jurisdiction to hear the claimant's claim.

In Shaw v CCL Ltd [2008] IRLR 284 EAT (decided under the repealed Sex Discrimination Act 1975), the EAT held that direct and indirect sex discrimination led to a fundamental breach of an employee's contract, entitling her to resign and claim constructive dismissal. The claimant contended that any act of discrimination is a breach of the implied term of trust and confidence. However, although in this case the high-handed way in which the employee's request to work part time had been dealt with did amount to a repudiatory breach justifying her resignation, the EAT was not prepared to say that this would always be the case.

An employment tribunal will decide, on a balance of probabilities, whether or not there has been unlawful discrimination. The burden of proof provision in the Act has the effect that a tribunal must find unlawful discrimination where the complainant proves facts from which the tribunal could conclude that the respondent has committed unlawful discrimination, unless the respondent provides a satisfactory, non-discriminatory explanation for the treatment.

Additional resources on prohibited conduct in the employment context

FAQs

Section 39(1)(b) of the Equality Act 2010 states that "an employer (A) must not discriminate against a person (B) as to the terms on which A offers B employment". However, under s.39(6), this does not apply in relation to sex (or pregnancy and maternity) to a term that relates to pay unless, were B to accept the offer, an equality clause or rule would have effect in relation to the term, or where no equality clause or rule applies, the inclusion of that pay-related term in an offer constitutes direct discrimination under s.13 (general direct discrimination provisions) or s.18 (unfavourable treatment related to pregnancy and maternity) of the Act.

The Equality Act 2010 explanatory notes (on the National Archives website) explain that under s.39(6) "a term of an offer of employment which relates to pay is treated as discriminatory where, if accepted, it would give rise to an equality clause or if an equality clause does not apply, where the offer of the term constitutes direct ... discrimination" either by reference to sex or pregnancy and maternity.

An "equality clause" means a sex equality clause (or a maternity equality clause) in relation to contractual pay and benefits, and an "equality rule" means a sex equality rule (or a maternity equality rule) in relation to an occupational pension scheme. The Equality Act 2010 explanatory notes (on the National Archives website) explain that s.66 of the Act "requires that a sex equality clause be read into the terms under which people are employed" and that the effect of this is that "any term of the contract which is less favourable than that of the comparator of the opposite sex is modified so as to ensure that both have the same effect".

If an equality clause or rule does not apply (because there is no comparator doing work that is equal to that of the complainant) but the term of the offer relating to pay amounts to less favourable treatment under s.13 (or unfavourable treatment under s.18) the complainant will be able to claim direct sex discrimination under s.13 (or pregnancy and maternity discrimination under s.18).

The Equality Act 2010 explanatory notes (on the National Archives website) cite the example of a woman who is offered a job on lower pay because she is pregnant when she applies. She would be unable to bring an equal pay case (ie "an equality clause case") because she would not have a comparator, but she would be able to claim direct pregnancy and maternity discrimination under s.18 of the Act.

Non-contractual pay and benefits

The effect of s.70 of the Equality Act 2010 is that unfavourable treatment relating to non-contractual pay and benefits is covered by the employment provisions of the Act, rather than those relating to equal pay. Claims with regard to discrimination by employers would therefore be brought under s.13 and s.39.

Contractual terms

Section 70 of the Equality Act 2010 provides that where an equality clause or rule operates, or would operate in the absence of a material factor defence or a relevant exception with regard to an occupational pension scheme, in respect of a term of a woman's contract, the sex discrimination provisions do not apply and any claim must be brought under the "equality of terms" provisions of the Act (see Equal pay).

Additional resources on contractual terms

Policies and documents

Contractual pay and sex discrimination

Section 71 introduces a new provision that will allow a person to bring a direct sex discrimination claim in relation to contractual pay where an equal pay claim (ie a sex equality clause claim) is not possible because there is no comparator and therefore no sex equality clause in operation. Where a person is treated less favourably than others because he or she is paid less because of his or her sex, that person will be able to bring a direct sex discrimination claim despite not being able to bring an equal pay claim because of the absence of a comparator. The Equality Act 2010 explanatory notes (on the National Archives website) state that s.71 would apply, for example if an employer told a woman: "I would pay you more if you were a man".

This provision extends only to direct sex discrimination in pay. Indirect sex discrimination in respect of contractual pay may be challenged only by means of an equal pay claim.

Prohibited conduct after the employment relationship has come to an end

An act of discrimination or harassment committed after the working relationship has come to an end will be unlawful if it would have been unlawful during the course of the working relationship, where the discrimination or harassment arises out of or is closely connected to that former relationship. It appears that post-employment victimisation is also unlawful in similar circumstances.

Thus, a complaint could be brought about any sex discrimination or victimisation during the course of an appeal against dismissal, although the employment ended with the dismissal. It is clear also that any sex discrimination or victimisation in the refusal to give a reference or in the form of a reference given within a reasonable time after employment has ended will fall within the employment provisions of the Act, and it is likely that a complaint could be brought about references even after a much longer period if the employer would still normally provide a reference after such an interval in the form sought. If an employer normally provides benefits to ex-employees, whether this is a contractual entitlement or otherwise, a complaint could be brought about discrimination or victimisation in the provision of such benefits after employment has ended.

Acts of discrimination and harassment of this type committed after the working relationship has come to an end will be unlawful if they are committed on or after 1 October 2010 when the Equality Act 2010 came into force, even if the working relationship came to an end before that date.

Therefore, where there is discrimination or harassment during an appeal against dismissal this will be unlawful even if the employee has already been dismissed.

Where an employer refuses to give an ex-employee a reference because she alleged discrimination or brought a claim, this would be unlawful victimisation.

Direct discrimination

Section 13 of the Equality Act 2010 defines direct discrimination as being where, because of a protected characteristic (eg sex), person A treats person B less favourably than person A treats or would treat other persons. There must be no material difference between the circumstances of B's case and that of his or her actual or hypothetical comparator(s) (s.23 of the Act).

The less favourable treatment can relate to B's actual or perceived sex, even where the perception is wrong. This could occur, for example, where an employer rejects an application from a man who it wrongly believes to be a woman because of his name.

The discrimination could also relate to someone else's sex, for example because of the sex of B's friends, relations or colleagues. In EAD Solicitors LLP and others v Abrams [2015] IRLR 978 EAT, the Employment Appeal Tribunal (EAT) held that a limited company could bring a claim of direct discrimination under the Equality Act 2010 because of the protected characteristic of someone with whom it was associated.

Section 24 of the Equality Act 2010 provides that the alleged discriminator's characteristics are irrelevant. This means that it is no defence to a claim of direct discrimination that A is the same sex as B. The Equality Act 2010 explanatory notes (on the National Archives website) state that the wording of s.24 is wide enough to cover cases of discrimination based on association or perception.

Determining whether or not there has been direct discrimination under the Equality Act 2010 requires a similar approach to that previously taken in cases of sex or race discrimination under the repealed Sex Discrimination Act 1975 and repealed Race Relations Act 1976. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL (a sex discrimination case decided under the Sex Discrimination (Northern Ireland) Order 1976) the House of Lords suggested that, although it may be helpful in some cases to divide the test for direct discrimination into two elements of less favourable treatment and whether or not this was on the prohibited ground, in other cases the less favourable treatment issue cannot be resolved without deciding on the reason for the treatment. This is most likely to be the case where there is no actual comparator in the same or not materially different relevant circumstances. Where a hypothetical comparator has to be relied on, determining the reason for the treatment may determine how a hypothetical comparator would have been treated.

However, the EAT in Olalekan v Serco Ltd EAT/0189/18 (a race discrimination case) said that "a Shamoon-style comparator is only one means of constructing a hypothetical comparator, and the tribunal was not bound to adopt that means in place of all others". In the EAT's view, the employer could be liable for discriminatory treatment meted out to different employees in similar circumstances even though different decision-makers were involved. However, on the facts of the claimant's case, the EAT held that the tribunal was entitled to dismiss his claim because the circumstances of his comparators were not truly similar and the tribunal did engage with his arguments on hypothetical comparators to a sufficient extent.

In Geller and another v Yeshurun Hebrew Congregation EAT/0190/15, a sex discrimination case, the EAT noted that "in some cases of alleged direct discrimination, the discrimination alleged is inherent in the act complained of and there will be no need to enquire further into the mental process, conscious or unconscious, of the alleged discriminator". However, in other cases "discrimination is not inherent in the act complained of as it does not by its nature strike at the protected characteristic, but the act complained of may be rendered discriminatory by the motivation, conscious or unconscious, of the alleged discriminator". The EAT explained that "in the latter class of cases the employment tribunal asks itself what the reason for the alleged discriminator's act was, and if the reason is that [the victim] possessed the protected characteristic, then direct discrimination is made out". The EAT held that Mrs Geller's case was the latter class of case and fell within the same category as the example in Nagarajan v London Regional Transport [1999] IRLR 572 HL, in which the House of Lords held that the motivation of the person committing an act of direct race discrimination may be conscious or unconscious. In Geller and another, the EAT also emphasised that "in neither case is a benign motive relevant; nor is it relevant whether the alleged discriminator thought the reason for his or her treatment of the person with the protected characteristic, was that characteristic".

Provisions on the application of the burden of proof require that, where a claimant proves facts from which the tribunal could conclude that the respondent has contravened a relevant provision of the Equality Act 2010, the tribunal must uphold the complaint unless the respondent provides an adequate non-discriminatory explanation for the treatment. For further information see Burden of proof in discrimination cases (in Tribunal procedures and penalties).

Direct discrimination cannot be justified. This was confirmed by the House of Lords in Ahsan v Watt (formerly Carter) (sued on his own behalf and on behalf of other members of the Labour Party) [2008] IRLR 243 HL (which was decided under the repealed Race Relations Act 1976). The fact that customers put pressure on an employer to discriminate cannot be used to justify direct discrimination.

Less favourable treatment

What constitutes less favourable treatment is a matter for the tribunal to decide. The Employment statutory code of practice (on the EHRC website) states that to decide whether or not an employer has "treated a worker 'less favourably', a comparison must be made with how they have treated other workers or would have treated them in similar circumstances". The code explains that: "If the employer's treatment of the worker puts the worker at a clear disadvantage compared with other workers, then it is more likely that the treatment will be less favourable: for example, where a job applicant is refused a job." It goes on to state that less favourable treatment "could also involve being deprived of a choice or excluded from an opportunity."

It is usually necessary that a complainant show that he or she has suffered an actual detriment, although as the code states: "The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated - or would have treated - another person."

The Equality Act 2010 requires complainants alleging direct discrimination to compare themselves with either an actual or a hypothetical comparator when showing less favourable treatment. So a complainant would have to show that he or she had been less favourably treated than another individual of the opposite sex either had or would have been treated in similar circumstances.

The Employment Appeal Tribunal (EAT) has emphasised that where an employer relies on differences between the claimant and the comparators to explain their dissimilar treatment, the difference must be "material" to the case (CP Regents Park Two Ltd v Ilyas EAT/0366/14 (a race discrimination case)).

Where there is no actual comparator in similar circumstances a tribunal may need to identify a hypothetical comparator and to identify the characteristics of that hypothetical comparator. A tribunal can draw an inference of how a hypothetical comparator would have been treated from evidence of how the employer treated actual non-identical, but not wholly dissimilar cases: Chief Constable of West Yorkshire v Vento [2001] IRLR 124 EAT (decided under the repealed Sex Discrimination Act 1975). The hypothetical comparator does not have to be a clone of the claimant in every respect: Madden v Preferred Technical Group Cha Ltd and another [2005] IRLR 46 CA (decided under the repealed Race Relations Act 1976). At times it may be necessary to transpose the gender of the claimant and the comparator to achieve a meaningful comparison: Kettle Produce Ltd v Ward EATS/0016/06 (decided under the repealed Sex Discrimination Act 1975). A tribunal is not obliged to construct a comparator, but when it does so, it must do so correctly (Marriott Motor Group and others v Cottington EAT/0319/08; EAT/0320/08, also decided under the repealed Sex Discrimination Act 1975). In Marriott Motor Group and others, the EAT held that the tribunal "failed to identify the correct hypothetical comparator in each of the four instances it gave for finding that it could draw an adverse inference of sex discrimination which shifted the burden of proof to the [employer]", and remitted the case to a fresh tribunal.

Additional resources on less favourable treatment

FAQs

Because of sex

The second hurdle in a claim of direct sex discrimination is to show that the reason the treatment was less favourable was "because of the protected characteristic" of sex. The protected characteristic of sex does not have to have been the sole reason for the less favourable treatment but it must have been an important or substantial reason. This was emphasised in Alam v London Probation Trust EAT/0199/14 (a race discrimination case), in which the EAT stated that: "What is required is not that the treatment is solely because of a protected characteristic but that the protected characteristic is an 'effective cause' of the treatment". Less favourable treatment on other grounds (conduct, performance, etc) is not unlawful discrimination.

Both the Equality Act 2010 explanatory notes (on the National Archives website) and Employment statutory code of practice (on the EHRC website) state that the use of the words "because of" instead of the words "on grounds of" used in the repealed Sex Discrimination Act 1975 is not intended to change the legal definition of direct discrimination. As such, it is likely that reference will continue to be made to certain cases that addressed how less favourable treatment was established under previous discrimination legislation.

In James v Eastleigh Borough Council [1990] IRLR 288 HL (decided under the repealed Sex Discrimination Act 1975), the council offered free swimming to persons over pensionable age (60 for women and 65 for men). The House of Lords held that the question to be considered when deciding whether or not treatment was on the grounds of sex was whether Mr James would have received the same treatment from the council but for his sex. The House of Lords held that, but for his sex, a man of 61 would have been entitled to the free facilities, and therefore Mr James succeeded.

In B and another v A [2010] IRLR 400 EAT (also decided under the repealed Sex Discrimination Act 1975), the EAT overturned a tribunal finding that an employer was motivated by an employee's gender when it failed to follow its disciplinary process when it dismissed him, following an allegation of rape made against him. The EAT held that, although tribunals must be alive to the fact that stereotypical views of male and female behaviour exist, there must be evidence for a tribunal to conclude that an employer has been motivated by those views. The EAT stated that it "could see no basis in the evidence for any inference that C's fear that the claimant might be violent was based on his gender, or, therefore, that he would have treated a female alleged aggressor differently".

In B v A [2007] IRLR 576 EAT (decided under the Sex Discrimination Act 1975), B had a relationship with his personal assistant, A. A then formed an association with someone else and, when B saw them together, he dismissed her. She claimed sex discrimination. The EAT held that the relevant question was why A had received the less favourable treatment, and the tribunal had to examine the reason or motive - whether it was conscious or unconscious - for the treatment. The EAT held that the correct comparison was with a homosexual male employer and a homosexual male employee, and that such an employee would have received the same treatment. Thus the reason for the treatment was jealousy, not sex, and the claim was dismissed.

The approach adopted by the EAT in Amnesty International v Ahmed [2009] IRLR 884 EAT, a race discrimination case (decided under the now repealed Race Relations Act 1976), is relevant to comparable sex discrimination cases. In Ahmed, the EAT held that an employer directly discriminated against an employee of northern Sudanese origin when it did not promote her because of concerns that the new position, which involved travel to Sudan, would put her in danger because of her race. The EAT stated that the employer's motive was irrelevant, and that while in "some cases the ground, or the reason, for the treatment complained of is inherent in the act itself" (for example, a sign saying "No blacks admitted"), in others "the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie other 'mental processes' (whether conscious or unconscious) which led a putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator's action, not his motive: just as a ... benign motive is irrelevant."

In HM Revenue and Customs v Saldanha EAT/0067/17 EAT, also a race discrimination case, the employee successfully applied for a posting in Italy, but HM Revenue and Customs (HMRC) withdrew its offer when it received the employee's psychological resilience assessment that indicated that, given his ethnicity, he could suffer stress if faced with any racism in Italy. The tribunal found that both the assessment and the withdrawal of the posting were acts of unlawful race discrimination. Applying Amnesty International, the EAT held that the tribunal was entitled to find that the nature of the discrimination arose from a criterion rather than a mental process as the acts complained of were based on race and inherently discriminatory. As HMRC had adopted the third party's psychological assessment, its decision taking was also "tainted" by race. Therefore, the tribunal did not need to investigate the mental processes of the third party or HMRC.

In Geller and another v Yeshurun Hebrew Congregation EAT/0190/15, the employment tribunal held that the employer's treatment of Mrs Geller "was based on non-sex related factors" which led to the tribunal's conclusion that "the treatment was non-sex related". Upholding the employee's appeal and remitting the case to the employment tribunal, the EAT stated that the tribunal had incorrectly relied on the employer's "genuine beliefs" and had overlooked the very important point that discrimination can be unconscious or subconscious, a principle applied by the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 572 HL.

The Court of Appeal has held that, where it is necessary to consider motive, it is the motive of the individual who carried out the asserted discriminatory act that is relevant, rather than someone else's motive. In CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 CA, an age discrimination case, the alleged discriminatory act of a sole decision-making employee was influenced by information supplied, or views expressed, by another employee whose motivation was asserted to be discriminatory. Referring to such a situation as a "tainted information case", the Court of Appeal took the view that "liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must himself have been motivated by the protected characteristic." The Court added that there was no basis for asserting that that employee's act could be said to be discriminatory on the basis of someone else's motivation, and that, in a tainted information case, the correct approach is to treat the conduct of the person supplying the information as a separate act from that of the person who acted on it, meaning that it should be the subject of a separate claim.

The context of the alleged discriminatory behaviour is relevant. In Warby v Wunda Group plc EAT/0434/11 (decided under the now repealed Sex Discrimination Act 1975), the EAT stated that: "Words that are hostile may contain a reference to a particular characteristic of the person to whom and against whom they are spoken" but held that case law requires tribunals to have regard to context, which, in this case, "was that the dispute and the discussion was about lying". The employer's accusation that the employee had lied about her pregnancy and miscarriage had not been made because of her sex, or because she was pregnant or because she had had a miscarriage.

Pregnancy and maternity

Pregnancy and maternity is a protected characteristic under the Equality Act 2010. Section 18(7) of the Act provides that unfavourable treatment because of pregnancy or an illness suffered as a result of pregnancy that occurs during the "protected period" will not be treated as direct sex discrimination under s.13 but will fall to be dealt with under the specific pregnancy and maternity provisions. The protected period is defined by s.18(5) of the Act as the period that starts "when the pregnancy begins" and finishes at the end of any period of statutory maternity leave to which the woman is entitled (see Pregnancy and maternity discrimination).

In addition, the direct discrimination provisions of the Equality Act 2010, in so far as they relate to sex discrimination, do not apply to unfavourable treatment because a woman is on compulsory maternity leave or is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary and additional maternity leave. Such treatment cannot be treated as direct sex discrimination under s.13 of the Act (s.18(7)). Unfavourable treatment that occurs after the protected period, but which results from a decision taken within that period, is to be regarded as having occurred during the protected period (s.18(5)).

In Mayr v Bäckerei Und Konditorei Gerhard Flöckner OHG [2008] IRLR 387 ECJ, the ECJ held that an employee whose ova had been removed from her body and fertilised by her partner's sperm, but had not been transferred to her uterus, was not pregnant within the meaning of the Pregnant Workers Directive. However, the ECJ held that, if the reason for the employee's dismissal in these circumstances was essentially the fact that she had undergone this advanced stage of in vitro fertilisation (IVF) treatment, this would constitute sex discrimination. It is unlikely that the circumstances in Mayr would constitute a pregnancy for the purposes of the pregnancy and maternity discrimination provisions of the Equality Act 2010, and would instead fall to be dealt with under the Act's sex discrimination provisions.

In Sahota v The Home Office and Pipkin EAT/0342/09 (decided under the repealed Sex Discrimination Act 1975), the employee claimed that she had been subjected to various detriments because she was undergoing IVF treatment. The EAT rejected the employee's argument that the less favourable treatment of an employee undergoing IVF treatment constitutes direct sex discrimination for the duration of that treatment, but stated, in agreement with what the ECJ held in Mayr, that there should be an exception for the less favourable treatment of an employee during the advanced stage of IVF, ie between the removal of the ova and the immediate implantation of the fertilised ova. The EAT went on to hold that the employment tribunal was entitled to find that the acts complained of did not amount to a detriment, and even if they arose out of, or were connected to, the fact that the employee was undergoing IVF treatment, they were not done on the ground that she was undergoing that treatment. A similar case would fall under the sex discrimination provisions, rather than the pregnancy and maternity provisions, of the Equality Act 2010.

Pregnancy and maternity related harassment falls under the direct discrimination provisions of the Act, because the Act's harassment provisions do not extend to the protected characteristic of pregnancy and maternity (s.26(5)). However, s.212(1) and (5) provide, in effect, that harassment relating to pregnancy and maternity may constitute a "detriment" for the purposes of a direct sex discrimination claim under s.13.

The Employment statutory code of practice (on the EHRC website) explains that pregnancy and maternity discrimination under s.18 of the Act does not extend to associative discrimination - it must relate to the pregnancy of the woman concerned. However, should someone else be treated less favourably by reference to a woman's pregnancy, that person may have a claim of direct sex discrimination under s.13. The code cites the example of a man whose pregnant partner works for the same employer and who is dismissed when he raises a health and safety issue concerning her pregnancy. He would be able to bring a sex discrimination claim based on his association with her. It is also suggested that a woman who is unfavourably treated because she is wrongly thought to be pregnant would be able to bring a direct sex discrimination claim on the basis of that perception (s.13).

Cases of indirect discrimination by reference to pregnancy and maternity would have to be argued as indirect sex discrimination under the Equality Act 2010, because the Act's indirect discrimination provisions, do not extend to the protected characteristic of pregnancy and maternity (see Indirect discrimination).

With regard to sex discrimination claims brought by men, the Act provides that "no account is to be taken of special treatment in connection with pregnancy or childbirth" (s.13(6)(b)). In de Belin v Eversheds Legal Services Ltd ET/1804069/09 (decided under the equivalent provisions of the now repealed Sex Discrimination Act 1975), an employment tribunal held that this provision did not permit an employer to artificially inflate an aspect of the redundancy matrix in respect of an employee on maternity leave with the result that a male colleague was selected for redundancy instead of her.

In Capita Customer Management Ltd v Ali; Hextall v Chief Constable of Leicestershire Police [2019] IRLR 695 CA, the Court of Appeal upheld the EAT finding (in Capita Customer Management Ltd v Ali [2018] IRLR 586 EAT) that it did not amount to direct discrimination for the employer to enhance maternity pay for female employees on maternity leave but not shared parental pay. The male claimant was entitled only to two weeks' full pay during his paternity leave and statutory shared parental pay during his shared parental leave, while female employees were entitled to 14 weeks' enhanced maternity pay. The Court of Appeal held that his circumstances were materially different to those of a mother on maternity leave (which meant that there was no valid hypothetical comparator). It found that "the entire period of maternity leave following childbirth, and not just the first two weeks of compulsory maternity leave, is for more than just facilitating childcare". Maternity leave is also designed to assist new mothers with their recovery from the physical and psychological effects of pregnancy and giving birth. The Court stated that the introduction of shared parental leave has not changed the predominant purpose of maternity leave. It held that the "special treatment afforded to a woman in connection with pregnancy or childbirth" (in s.13(6)(b)) is not simply a narrow exception to the general principle of non-discrimination, but is fundamental to the preservation and promotion of the protection under EU law for female workers having a child. Therefore, the proper comparator is a female employee on shared parental leave. As there was no difference in treatment between the claimant and such an employee, there was no direct discrimination.

Indirect discrimination

Section 19 of the Equality Act 2010 defines indirect discrimination as being where person A applies to person B a provision, criterion or practice that is discriminatory in relation to a relevant protected characteristic of B's.

A provision, criterion or practice is discriminatory in relation to B's sex, if:

  • A applies, or would apply it, to people who are not of the same sex as B;
  • it puts, or would put, people of the same sex as B at a particular disadvantage when compared with others who are not of that sex;
  • it puts, or would put, B at that disadvantage; and
  • A cannot justify the provision, criterion or practice by showing that it is a proportionate means of achieving a legitimate aim (see Justification).

Section 19 of the Act does not extend to indirect discrimination to the protected characteristic of pregnancy and maternity. Therefore cases of indirect discrimination in relation to pregnancy and maternity will have to be argued as indirect sex discrimination. In The Commissioner of Police of the Metropolis v Keohane EAT/0463/12, the Employment Appeal Tribunal held that "the basis of a claim for indirect discrimination was made out" in respect of the removal and reallocation of a police dog from a pregnant police dog handler. The case was remitted to the employment tribunal on the issue of objective justification.

Prior to 12 October 2001, the definition of indirect discrimination in the now repealed Sex Discrimination Act 1975 included the wording "requirement or condition" (rather than "provision, criterion or practice"), which is referred to in some of the case examples that follow.

The test for disproportionate impact was amended in 2001 and again on 1 October 2005. When considering cases that relate to events prior to 1 October 2005, regard should be had to the fact that the test was different and, arguably, narrower than the current test.

The definition of indirect discrimination in the Equality Act 2010 requires the claimant to show that the application of the provision, criterion or practice puts or would put women at a particular disadvantage when compared with men who are in the same circumstances. Government guidance suggests that statistics can be helpful in ascertaining relative disadvantage, but they are not essential.

The pool for comparison

The claimant must be able to show that the application of the provision, criterion or practice disadvantages or would disadvantage persons of the relevant sex. The choice of the appropriate pool for deciding disadvantage is a matter for the tribunal but it should be sufficiently wide to include all those who might be affected by the provision, criterion or practice. The Employment statutory code of practice (on the EHRC website) states that: "In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively." The Court of Appeal in Jones v University of Manchester [1993] IRLR 218 CA (decided under the repealed Sex Discrimination Act 1975) held that the appropriate pool for comparison in a recruitment case was all those people who could comply with the other selection criteria, apart from the requirement at issue.

In Hacking & Paterson and another v Wilson EAT/0054/09 (decided under the repealed Sex Discrimination Act 1975), the Employment Appeal Tribunal (EAT) reaffirmed that where an indirect sex discrimination complaint is based on an employer's refusal to grant a benefit, the appropriate pool of comparators should include only those employees who want the benefit.

In Capita Customer Management Ltd v Ali; Hextall v Chief Constable of Leicestershire Police [2019] IRLR 695 CA, the Court of Appeal considered the potential for an indirect sex discrimination claim by a male police officer where the employer enhanced maternity pay but not shared parental pay. The Court of Appeal found that the circumstances of women on maternity leave were different from the claimant's and they should not be included in the pool for comparison. Consequently, the provision, criterion or practice relied on by the claimant of "paying only the statutory rate of pay for those taking a period of shared parental leave" could "be seen to cause no particular disadvantage to the claimant, and the issue of justification simply [did] not arise". The disadvantage arose from the fact that only a birth mother is entitled to statutory or contractual maternity pay and the "complaint [was] in reality an attack on the whole statutory scheme, in turn derived from EU law, under which special treatment is given to birth mothers".

Once the pool for comparison has been selected, to assess its potential discriminatory effect it is necessary to ascertain whether or not people of the same sex are disadvantaged by the provision, criterion or practice. The Employment statutory code of practice (on the EHRC website) advises: "Looking at the pool, a comparison must be made between the impact of the provision, criterion or practice on people without the relevant protected characteristic, and its impact on people with the protected characteristic."

London Underground Ltd v Edwards (No.2) [1998] IRLR 364 CA (also decided under the repealed Sex Discrimination Act 1975) concerned changes to the rostering system for train drivers on the London Underground. All the male drivers (over 2000 in total) were able to comply with the new rosters, as were 20 of the 21 female drivers. The only exception was Ms Edwards, a single parent, who found that she could no longer reconcile work with her childcare responsibilities. The Court of Appeal upheld the tribunal's decision that the new rosters indirectly discriminated against women, even though 95% of the female drivers were able to work them, because all the men could comply. Where the number of employees in the relevant pool was as small as in the instant case, the tribunal was entitled to draw on the well-known fact that women are more likely to be single parents than men. A considerably smaller proportion of women would, therefore, have been able to work the new rules, ie 95% as against 100% of the men. This case shows that a tribunal may use its common sense and experience in answering the proportionality question and in defining the pool.

In Chief Constable of Avon & Somerset Constabulary v Chew EAT/503/00 (decided under the repealed Sex Discrimination Act 1975), the EAT upheld a tribunal's finding that a requirement to comply with shift rosters in order to be entitled to work part time was indirectly discriminatory. The tribunal considered the appropriate pool to be all officers to whom the condition was applied. The tribunal identified at least 11 officers in this pool who could not comply with this condition. This produced a difference of 2.26% between the proportions of men and women who could comply. Although this difference did not, on the face of it, amount to a sufficiently disparate effect, the EAT held that the tribunal had been correct to adopt a flexible approach and have regard to other factors in concluding that the condition had a disparate adverse impact on women, ie the fact that the statistics indicated the bare minimum of officers who could not comply and that an inherently likely effect of the condition was that it would disadvantage officers with childcare responsibilities, and that the overwhelming burden of such responsibilities falls on women.

In British Airways Plc v Starmer [2005] IRLR 862 EAT (decided under the repealed Sex Discrimination Act 1975), the EAT held that British Airway's refusal to allow the pilot claimant to halve her working hours, as opposed to working 75% of her hours, was indirect sex discrimination. The EAT agreed that a 3.66% difference in men and women who could work full time constituted a disproportionate impact, saying that the tribunal was entitled to take into account, where appropriate, a more general picture than is specifically displayed by statistics put in evidence. The EAT did not accept British Airway's justification that it would be unsafe if the claimant flew less than 75% of full-time hours, this being based on a generalised standard requiring a minimum number of flying hours. Although British Airways appealed, it later withdrew the appeal, accepting that the claimant had been able to maintain high standards of performance, even though she had less flying time.

In Lockwood v Crawley Warren Group Ltd EAT/1176/99 (decided under the repealed Sex Discrimination Act 1975), the EAT held that the refusal of a woman's request to work from home in order to resolve childcare difficulties could conceptually constitute indirect sex discrimination and remitted the case to the employment tribunal for full consideration. Requirements to work outside normal office hours and refusals to allow women to leave work early to pick their child up from nursery on time or to work in a job share have also been held to be discriminatory by the tribunals. The Employment statutory code of practice (on the EHRC website) advises that sometimes "a provision, criterion or practice is intrinsically liable to disadvantage a group with a particular protected characteristic". The code gives the following example: "It is accepted as common knowledge that men are far less likely than women to be single parents with childcare responsibilities."

In Coker and Osamor v Lord Chancellor and Lord Chancellor's Department [2002] IRLR 80 CA (decided under the repealed Race Relations Act 1976 and repealed Sex Discrimination Act 1975), the Court of Appeal held that there was no indirect sex or race discrimination when the Lord Chancellor appointed a special adviser with the requirement that the successful candidate be personally known to him. The employment tribunal had held that this requirement indirectly discriminated against women and those from racial minorities because, in a pool of the Lord Chancellor's acquaintances, there were considerably more men than women and white people than those from ethnic minorities. The Court of Appeal held that where a requirement excludes almost the entirety of the pool it cannot constitute indirect discrimination within the statutes. It is arguable, based on this case, that making an appointment from within a circle of family, friends and personal acquaintances may not constitute indirect discrimination. However, the employment tribunal in Elliott v Somerset County Council [2002] ET/1400922/02 (decided under the repealed Sex Discrimination Act 1975), rejected the council's argument that managers at a leisure centre simply chose staff from applicants who were known to them and that this policy was not improper or discriminatory and had been approved by the Court of Appeal in Coker and Osamor. The tribunal said that to require swimming instructors to be known to the existing team would be most improper and contrary to the council's equal opportunities policy, and that the requirement clearly could not be necessary for the proper discharge of the duties of a swimming instructor.

Disadvantage

The claimant must show that the provision, criterion or practice in question puts or would put people of the same sex as him- or herself at a particular disadvantage when compared with people of the opposite sex. The claimant must also establish that it puts or would put him- or herself at that disadvantage. As explained in the Employment statutory code of practice (on the EHRC website) the phrase "would put" "allows challenges to provisions, criteria or practices which have not yet been applied but which would have a discriminatory effect if they were". Disadvantage is not defined in the Equality Act 2010, but it is usually understood to be a similar concept to "detriment". According to the code, disadvantage could involve the denial of an opportunity or choice, deterrence, rejection or exclusion, but would exclude "an unjustified sense of grievance".

In the words of the EAT "It is not sufficient that the practice puts, or would put, only the [complainant] at a particular disadvantage". In Greenland v Secretary of State for Justice EAT/0323/14 (a race discrimination case), Mr Greenland complained that a practice of paying higher fees to parole board members who were judges indirectly discriminated against black non-judicial members of the board. However, while all 36 judicial members were white, there was no evidence that there were any black members apart from Mr Greenland himself among the group of 113 non-judicial members. The EAT stated that: "The wording and purpose of s.19 of the [Equality Act 2010] point to consideration of the potential impact of the practice on the appellant and other non-judicial members of the parole board who share his protected characteristics (not hypothetical, potential future members of the parole board)." The EAT assumed (without deciding) that it would be sufficient if there were at least one other person who shared Mr Greenland's "protected characteristic and that 'persons' in s.19(2)(b) includes the singular as well as the plural". However, if Mr Greenland was in fact the only black non-judicial member, the EAT opined that "this would properly raise the question of whether s.19(2)(b) permitted a hypothetical black person to be included amongst the group for the purposes of the comparison". The EAT concluded that: "On the facts of the present case, there is no scope for including hypothetical persons, that is persons who are not members of the parole board, within the group for comparison. We do not consider that the phrase 'puts or would put persons' includes, in the context of this case, non-existent or hypothetical persons who are not yet members of the parole board." In any event (having regard to s.23 of the Equality Act 2010), on the facts there were material differences "between the retired judges who were members of the parole board and the non-judicial members" which rendered comparison impermissible. The EAT took the view that such an approach "is consistent with the decision of the Court of Appeal in Eweida v British Airways Plc [2010] IRLR 322 CA".

In Shackletons Garden Centre Ltd v Lowe EAT/0161/10 (decided under the now repealed Sex Discrimination Act 1975), the EAT found that the employment tribunal had made insufficient findings of fact to support its conclusions that the employee was personally disadvantaged by the employer's provision, criterion or practice of requiring some weekend working as opposed to suffering a self-inflicted detriment arising from the employee's personal choice of childcare arrangements.

In Ministry of Defence v DeBique [2010] IRLR 471 EAT (decided under the repealed Sex Discrimination Act 1975 and the repealed Race Relations Act 1976), the EAT upheld the employment tribunal's findings of indirect sex and race discrimination. The employee is a female soldier recruited from St Vincent and the Grenadines. She is a single parent with a young daughter. The Ministry of Defence applied two provisions, criteria or practices to the employee. The first prevented her, as a Foreign and Commonwealth soldier, from inviting her sister, who is a Vincentian national, to live with her in service-families accommodation, and act as a live-in childminder. The second required her to be available for deployment 24 hours a day, seven days a week. The tribunal found that, when considered in isolation, the latter provision, criterion or practice was justified because of the need to keep the army in a high state of readiness. However, the tribunal went on to consider its effect together with the first provision, criterion or practice to reflect the employee's particular disadvantage, namely that she was required as a single parent to be available for duty 24 hours a day, seven days a week, but was not permitted to have her sister, who was available to act as a child carer, enter the UK and stay with her in service-families accommodation on a long-term basis. The tribunal held that the combined effect of both provisions, criteria or practices disadvantaged women, who are more likely to be single parents with primary childcare responsibility, and in this case disadvantaged the employee thereby giving rise to indirect sex discrimination (see Justification).

In Little v Richmond Pharmacology Ltd EAT/0490/12 (decided under the repealed Sex Discrimination Act 1975), the EAT upheld the employment tribunal decision that an employee whose initial request to work part-time on return from maternity leave was refused, but later granted on a three-month trial basis, had not suffered indirect sex discrimination. Although a provision, criterion or practice of full-time work was initially applied, it was disapplied on appeal and the employee was not disadvantaged.

In Essop and others v Home Office (UK Border Agency) [2017] SC 27 SC, the Supreme Court held that claimants in indirect discrimination claims are not required to explain the reason why the provision, criterion or practice (PCP) puts, or would put, the affected group at a particular disadvantage, stating that: "It is enough that it does." In Essop, the PCP was the requirement for all staff to pass an assessment test to be eligible for promotion. Statistical evidence indicated that candidates from black and minority ethnic (BME) backgrounds and candidates over 35 were disproportionately likely to fail the test, although no reason was identified to explain the differential. Mr Essop, along with other unsuccessful candidates, claimed that they suffered a disadvantage compared with white and younger candidates. Overturning the Court of Appeal decision (Essop and others v Home Office (UK Border Agency) [2015] IRLR 724 CA) and upholding the EAT decision (Essop & others v Home Office (UK Border Agency) EAT/0480/13), the Supreme Court held that there is no requirement for the PCP to "put every member of the group sharing the particular protected characteristic at a disadvantage". The Court noted that "The fact that some BME or older candidates could pass the test is neither here nor there. The group was at a disadvantage because the proportion of those who could pass it was smaller than the proportion of white or younger candidates [who could pass the test]."

The Supreme Court decision in Essop is more in line with the European Court of Justice (ECJ) decision in CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia [2015] IRLR 746 ECJ (a race discrimination case that did not concern, but is likely to impact on, employment law). In CHEZ, the claimant, who was an occupant in an urban district mainly inhabited by persons of Roma origin, but who was not herself of Roma origin, made a complaint of discrimination that the Roma majority district received less favourable treatment in that their electricity meters were deliberately installed at inconvenient heights in comparison to districts in which the inhabitants were not majority Roma origin where the meters were installed at head height. The ECJ held that it is not necessary for the claimant to share the same characteristic as the protected group to bring a complaint of indirect race discrimination under the Race Directive (2000/43/EC). The ECJ further stated that art.2 of the Race Directive "must be interpreted as precluding a national provision under which, in order for there to be indirect discrimination on the grounds of racial or ethnic origin, the measure in question is required to have been adopted for reasons of racial or ethnic origin".

Justification

An employer may be able to defend the discriminatory result of a provision, criterion or practice by establishing that it is justifiable because the application of that provision, criterion or practice is a "proportionate means of achieving a legitimate aim". The burden is on the employer to show this on objective grounds. While this test is not defined in the Equality Act 2010 itself, it embodies principles derived from EU law. The courts carry out a balancing exercise between the employer's need to impose the provision, criterion or practice and its discriminatory effect. The more discriminatory the effect, the more difficult it will be for the employer to show that the application of the provision, criterion or practice was justified.

The Employment statutory code of practice (on the EHRC website) states that the aim of the provision, criterion or practice "should be legal, should not be discriminatory in itself and must represent a real, objective consideration" to constitute a "legitimate aim".

The code states that EU law "views treatment as proportionate if it is an 'appropriate and necessary' means of achieving a legitimate aim". However, the code points out that "necessary" in this context does not mean that the provision, criterion or practice must be the only possible way of achieving the legitimate aim: "it is sufficient that the same aim could not be achieved by less discriminatory means". In practice, this requires balancing the discriminatory effect of the provision, criterion or practice against the employer's reasons for applying it, taking into account all relevant facts. In XC Trains Ltd v CD and others [2016] IRLR 748 EAT, the Employment Appeal Tribunal (EAT) held that the employment tribunal was entitled to find that a provision, criterion or practice (PCP) requiring train drivers to work 50% of rosters and on Saturdays was a PCP that put the female claimant at a disadvantage within the meaning of s.19(2)(c) of the Equality Act 2010. However, the tribunal had failed to balance the discriminatory effect of the PCP against the legitimate aims of the employer "to run a train service fulfilling their contractual obligations under their franchise and the rights and needs of the workforce". The EAT remitted the case to a fresh tribunal.

The test prior to 1 October 2005 was that the employer had to show that the application of the provision, criterion or practice was justifiable irrespective of the sex of the person to whom it was applied, and most of the reported case law refers to this earlier test. It may be that the change in wording to a "proportionate means of achieving a legitimate aim" does not signify any increased onus on the employer. However, the burden is on the employer to prove the defence on objective grounds, and the courts will carry out a balancing exercise between the employer's reasonable need to impose the provision, criterion or practice and the discriminatory effect of the provision, criterion or practice: Hampson v Department of Education and Science [1989] IRLR 69 CA (decided under the now repealed Race Relations Act 1976). The more discriminatory the provision, criterion or practice, the more difficult it will be for the employer to show that it was justifiable. Cost alone will not justify the imposition of a discriminatory provision, criterion or practice, but may be one of the factors taken into account in the balancing exercise: Cross and others v British Airways plc [2005] IRLR 423 EAT (decided under the repealed Sex Discrimination Act 1975). In Woodcock v Cumbria Primary Care Trust [2011] IRLR 119 EAT, an age discrimination case, the Employment Appeal Tribunal (EAT) held that the decision to dismiss Mr Woodcock before he reached the age of 50 to prevent him from getting a pension "windfall" and avoid the corresponding loss to the trust was a legitimate aim that went beyond the mere wish to reduce costs. The EAT went on to question the current orthodoxy that an employer cannot justify discrimination on the ground of cost alone, and stated that cost alone may be a sufficient justifying factor where the cost of avoiding or rectifying the discriminatory impact of a measure or state of affairs would be "disproportionately high". The EAT noted that in many cases the discriminatory impact will be such that the employer "must avoid or correct it whatever the cost" but in other cases the discriminatory impact will be trivial and the cost of avoiding it enormous. The Court of Appeal dismissed Mr Woodcock's appeal (Woodcock v Cumbria Primary Care Trust [2012] IRLR 491 CA). It noted that almost every decision made by an employer will have regard to costs and observed that the relevant legislation was silent as to "the extent to which considerations of cost may feature in the justification exercise" and concluded from this that the correct question is whether or not treatment that would otherwise be discriminatory "may be justified if it was 'a proportionate means of achieving a legitimate aim'". The Court of Appeal concluded, after reviewing the relevant authorities including decisions of the European Court of Justice, that although "the guidance of the Court of Justice is that an employer cannot justify discriminatory treatment 'solely' because the elimination of such treatment would involve increased costs, that guidance cannot mean more than that the saving or avoidance of costs will not, without more, amount to the achievement of a 'legitimate aim'". Accordingly, had the employer's treatment of Mr Woodcock been "no more than treatment aimed at saving or avoiding costs" it would not have been justifiable, but his dismissal notice was "genuinely served, with the aim of giving effect to the trust's genuine decision to terminate his employment on the grounds of his redundancy". This was a legitimate aim and it was also legitimate for the trust "to ensure that, in giving effect to it, the dismissal also saved the trust the additional element of costs that, had it not timed the dismissal as it did, it would be likely to have incurred". Woodcock was concerned with the attempted justification of age discrimination under the repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031), but it is likely to remain relevant under the Equality Act 2010.

A case brought under the Part-Time Workers Directive (Directive 97/81/EC) which was transposed into domestic law by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) has implications for attempted justification on costs grounds under the Equality Act 2010. Following a reference to the ECJ (O'Brien v Ministry of Justice Case C-393/10 ECJ), the Supreme Court held, contrary to a specific provision in the Regulations, that a part-time fee paid judge was a "worker" and as such entitled to the protection of the Regulations. Further, the exclusion of part-time judges from the judicial pension scheme amounted to less favourable treatment that was not objectively justified. The Supreme Court held that "the unequal treatment of different classes of employees must be justified by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the basis of objective and transparent criteria". Commenting on the "pure budgetary consideration" that the pensions payable to full-time judges may have to be reduced if part-time judges receive a pension, the Supreme Court continued: "the fundamental principles of equal treatment cannot depend upon how much money happens to be available in the public coffers at any one particular time or upon how the state chooses to allocate the funds available between the various responsibilities it undertakes". Although the Supreme Court found it "unnecessary ... to express a view upon whether the case of Woodcock was rightly decided" it is clear that Woodcock v Cumbria Primary Care Trust [2012] IRLR 491 CA must now be interpreted in the light of O'Brien (O'Brien v Ministry of Justice (formerly Department for Constitutional Affairs) [2013] IRLR 315 SC).

In LB Steel v (1) The Union of Post Office Workers and (2) The General Post Office [1977] IRLR 288 EAT (decided under the repealed Sex Discrimination Act 1975), the EAT held that it is necessary to distinguish between a discriminatory requirement or condition, the imposition of which is necessary, and one that is imposed merely as a matter of convenience. Consideration should be given as to whether or not the aim could have been achieved in a non-discriminatory manner. In conclusion, it is necessary to weigh up the needs of the enterprise against the discriminatory effects of the requirement or condition.

In Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317 ECJ (which concerned art.157 of the Treaty on the functioning of the European Union (formerly art.141 of the Treaty establishing the European Community)), the European Court of Justice (ECJ) held that in order to justify a discriminatory objective, an employer must show that "the means chosen for achieving that objective correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objective in question and are necessary to that end".

In Whiffen v Milham Ford Girls' School [2001] IRLR 468 CA (decided under the repealed Sex Discrimination Act 1975), the Court of Appeal held that a condition in a redundancy policy under which employees on fixed-term contracts were automatically selected for redundancy before employees on permanent contracts, and which had a disparate adverse impact on women, was not justified.

In HM Land Registry v Benson and others [2012] IRLR 373 EAT (decided under the repealed Sex Discrimination Act 1975), the employer applied a provision, criterion or practice (PCP) that, to be considered for compulsory early severance or compulsory early retirement, employees currently on a career break should be due to return to work before 1 April 2010. This was indirectly discriminatory because the PCP put women at a particular disadvantage when compared with men because women took proportionately longer career breaks than men. The tribunal found that the PCP was not justified: it was not applied in a fair or reasonable manner because employees on career breaks were not allowed the opportunity to return to work sooner. The EAT upheld the tribunal decision.

In Allen and others v GMB [2008] IRLR 690 CA (decided under the repealed Sex Discrimination Act 1975), the Court of Appeal restored a tribunal's decision that the union indirectly discriminated when it advised female members to accept a settlement of their equal pay claim that was lower than they might have expected, in the interests of tying up successful negotiations on behalf of other groups of members who were predominantly male. The Court did not consider that the employment tribunal had erred in concluding that the GMB's means (choosing not to pursue a better deal for the women) were disproportionate to the achievement of its legitimate aim (securing pay protection and future pay for other groups). The House of Lords refused GMB's request for permission to appeal.

Many of the cases in relation to indirect sex discrimination are connected with the refusal of part-time or job-share work to employees returning from maternity leave. One of the first cases in this area was The Home Office v Holmes [1984] IRLR 299 EAT (decided under the repealed Sex Discrimination Act 1975). In this case the EAT rejected the Home Office's argument that a requirement of full-time working is justified simply because the bulk of industry is organised in this way. The employer must be able to show objective justification for the refusal to allow a woman to return from maternity leave on a part-time basis when she has previously worked full time.

Harassment

Section 26 of the Equality Act 2010 prohibits three types of harassment in relation to the protected characteristic of sex:

  • sex-related harassment ie unwanted conduct related to the protected characteristic of sex;
  • harassment of a sexual nature ie unwanted conduct of a sexual nature; and
  • less favourable treatment based on a person's rejection of, or submission to, sex-related harassment or sexual harassment.

Section 40 of the Act provides that it is unlawful for an employer to harass an employee or an applicant for employment, and s.41 provides that it is unlawful for a principal to harass a contract worker in relation to contract work. Neither ss.40 or 41 requires the complainant to establish any detriment beyond the harassment itself and, in fact, s.212 expressly provides that detriment does not include conduct that amounts to harassment (except in relation to the protected characteristics that the Act's harassment provisions do not cover ie pregnancy and maternity and marriage and civil partnership).

The employer will be liable for acts of employees carried out in the course of employment. In Jones v Tower Boot Co Ltd [1997] IRLR 168 CA (decided under the repealed Race Relations Act 1976), the Court of Appeal held that "in the course of employment" could cover even acts of torture to which workers had subjected a colleague in the workplace.

In Unite the Union v Nailard [2016] IRLR 906 EAT, the EAT upheld the employment tribunal finding that the union was liable under s.109 of the Equality Act 2010 for the sexual harassment of the claimant, a union employee, by two of its elected officers who were held to be acting as agents of the union.

Harassment may occur over a period of time through a series of relatively minor incidents of harassment or it may occur through one blatant incident. In either case the complainant will have to show that his or her working environment has been affected in such a way and to such a degree as to violate his or her dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him or her.

In Timothy James Consulting Ltd v Wilton EAT/0082/14; EAT/020414 & EAT/0205/14, the EAT noted that "prior acts of harassment may give rise to a constructive dismissal". However, it went on to note that "the act of constructive dismissal does not in itself fall within the meaning of harassment as defined by the Equality Act. It was therefore not open to the tribunal as a matter of law to find that the constructive dismissal ... was in itself an unlawful act of harassment."

Additional resources on harassment

FAQs

Policies and documents

"How to" guidance

Line manager briefings

Under s.26(1) of the Equality Act 2010, harassment occurs where person A engages in unwanted conduct related to the protected characteristic of sex, which has the purpose or effect of:

  • violating person B's dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her.

The Employment statutory code of practice (on the EHRC website) makes clear that if "unwanted" conduct (which according to the code means "unwelcome" or "uninvited") is engaged in with the purpose of violating the dignity of another person or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person, that amounts to harassment irrespective of its effect on the person concerned. However, in many cases, unintentional conduct, or even conduct that is intended to be amusing or friendly, may amount to harassment. The code advises that, where there is no intention to create one of the environments described above, each of the following, in accordance with s.26(4) of the Equality Act 2010, must be taken into account in determining whether or not the conduct amounts to harassment:

  • B's perception.
  • The other circumstances of the case.
  • Whether or not it is reasonable for the conduct to have that effect (which is an objective test).

The Employment statutory code of practice (on the EHRC website) states that: "unwanted conduct can include any kind of behaviour, including spoken or written words of abuse, imagery, graffiti, physical gestures, jokes, pranks, acts affecting a person's surroundings or other physical behaviour".

The harassment need only be "related" to the protected characteristic of sex to be unlawful under the Equality Act 2010, and the unwanted conduct does not have to be directed towards the complainant or related to his or her actual or perceived sex.

Where an employment tribunal is satisfied that the conduct in question has brought about the proscribed effect, by reference to the employee's perception, then "the question of whether or not it is reasonable for the conduct to have that proscribed effect is effectively determinative" of whether or not the conduct amounts to harassment. In Ahmed v Cardinal Hume Academies EAT/0196/18, a disability discrimination case, the employee sought to persuade the Employment Appeal Tribunal (EAT) that "there may be circumstances where it would be open to the tribunal to conclude that conduct is to be regarded as having the proscribed effect notwithstanding that it might not be reasonable for it to have that effect". The EAT disagreed, stating that the correct approach to the application of s.26(4)(c) is as set out in Pemberton v The Right Reverend Richard Inwood [2018] Civ 564 CA. In Pemberton, the Court of Appeal made it clear that "the relevance of the objective question" in s.26(4)(c) "is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so".

In Bakkali v Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester) [2018] IRLR 906 EAT, the Employment Appeal Tribunal (EAT) considered the test that should be applied when determining whether or not the unwanted conduct is "related to" a protected characteristic. The EAT held that "related to" requires a consideration of the context of the offending words or behaviour and the "mental processes" of the alleged harasser. The EAT upheld the tribunal decision that asking a Muslim employee of Moroccan origin whether or not he supported IS did not amount to harassment because, given the context, the offending comment was not "related to" his religious belief or race. The tribunal had found that the comment had been made after the employee had informed his colleague about some "positive sounding comments" from a journalist about IS.

In Unite the Union v Nailard [2016] IRLR 906 EAT, the employment tribunal found that the union was vicariously liable for the behaviour of elected officers of the union on the basis that its failure to deal properly with allegations of sexual harassment by them of a paid union official also amounted to harassment under s.26 of the Equality Act 2010. The EAT stated that "s.26 requires the employment tribunal to focus upon the conduct of the individual or individuals concerned and ask whether their conduct is associated with the protected characteristic - for example, sex as in this case". It also stated: "It is not enough that an individual has failed to deal with sexual harassment by a third party unless there is something about his own conduct which is related to sex." The union's appeal was allowed and the issue was remitted to the tribunal for reconsideration.

Harassment of a sexual nature

Under s.26(2) of the Equality Act 2010, harassment occurs where person A engages in unwanted conduct of a sexual nature, which has the purpose or effect of:

  • violating person B's dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her.

It is clear that conduct may be verbal, non-verbal or physical conduct of a sexual nature. The Employment statutory code of practice (on the EHRC website) states that it "can cover verbal, non-verbal or physical conduct including unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature". Remarks made by email are entirely capable of amounting to harassment under the discrimination legislation. Employers should properly educate employees about the potential liability for abuse and should establish proper guidelines.

Consideration should also be given to limiting the use of the internet and the downloading of pornography. Employers risk discrimination complaints if they permit employees to create an uncomfortable working environment by displaying, downloading and circulating explicit material. The code cites the example of a female employee who works in an office where she knows male members of staff download pornographic images on to their computers. If this creates an intimidating, hostile, degrading, humiliating or offensive environment for her, this could constitute harassment even if the images are not shown to her.

Prior to 1 October 2005, there was no express provision in the now repealed Sex Discrimination Act 1975 dealing with sexual harassment, which was recognised only as a form of direct sex discrimination that was established if the tribunal was satisfied that there was less favourable treatment on the grounds of the person's sex and he or she had been subjected to a detriment. However, case law relating to events before 1 October 2005 may be helpful in interpreting the provisions of the Equality Act 2010, although regard must be had to the different tests involved.

In Moonsar v Fiveways Express Transport Ltd [2005] IRLR 9 EAT (decided under the repealed Sex Discrimination Act 1975), the Employment Appeal Tribunal (EAT) held that the downloading of pornographic images by male colleagues in the same room as a woman was potentially less favourable treatment of that woman and the burden would shift to the employer to show that there was not less favourable treatment.

Not all unwanted behaviour will constitute unlawful sexual harassment. On the basis of case law prior to 1 October 2005, which may still be relevant to the test under the Equality Act 2010, it seems that treatment at the lower end of the scale to which many people would not take exception will not constitute sexual harassment unless the recipient has made it clear, in advance, by words or conduct, that such conduct is unwelcome. It is not necessary for a complainant to make a public fuss to indicate disapproval; walking out of the room may be sufficient. Provided that any reasonable person would understand the complainant to be rejecting the conduct of which he or she was complaining, further such conduct will, generally, constitute sexual harassment: (1) Reed and (2) Bull Information Systems Ltd v Stedman [1999] IRLR 299 EAT (decided under the repealed Sex Discrimination Act 1975).

However, some conduct will quite clearly be unwelcome, if not expressly invited, and will constitute sexual harassment without the recipient having to make it clear in advance that the conduct is unwelcome. The EAT said in Stedman: "a woman does not, for example, have to make it clear in advance that she does not want to be touched in a sexual manner".

The European Commission has produced a code of practice on measures to combat sexual harassment. In deciding whether or not an incident amounts to harassment, tribunals often refer to the code. Sexual harassment is defined by the code as "unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work".

From a practical point of view employers that are aware that bawdy office banter is going on in the workplace should err on the side of caution and discourage this type of behaviour. This will also help avoid the situation where employees feel that they have to put up with an uncomfortable working environment.

Under s.26(3) of the Equality Act 2010, harassment occurs where person A, or another person:

  • engages in sex-related harassment ie unwanted conduct related to the protected characteristic of sex or harassment of a sexual nature ie unwanted conduct of a sexual in nature;
  • that conduct has the purpose or effect of:
    • violating person B's dignity; or
    • creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her; and
  • because of B's rejection of, or submission to, the conduct, A treats B less favourably than A would have treated B if B had not rejected or submitted to the conduct.

The Employment statutory code of practice (on the EHRC website) explains that the less favourable treatment may be committed by the same person who committed the original act of harassment, or by a different person. According to the code, a shop assistant who is rejected for promotion by her boss, having turned down his sexual advances, would have a claim under this provision if she believes that she would have got the promotion had she accepted his advances.

An employer will be liable for any acts of unlawful discrimination carried out by its employees during the course of their employment unless it can show that it has taken such steps as were reasonably practicable to prevent those acts (see Who is liable?).

In Chief Constable of the Lincolnshire Police v Stubbs and others [1999] IRLR 81 EAT (decided under the repealed Sex Discrimination Act 1975), DC Stubbs attended a works leaving party with her boyfriend. On the way to the ladies room she passed DC Walker who acknowledged her and said in a loud voice "F****** hell, you look worth one. Maybe I shouldn't say that it would be worth some money". DC Stubbs brought a successful claim of sex discrimination. The tribunal significantly stated that "these incidents were connected to work and the workplace. They would not have happened but for the claimant's work. Work-related social functions are an extension of employment and we can see no reason to restrict the course of employment to purely what goes on in the workplace."

Third parties

An employer may be liable in connection with a third party's conduct towards an employee if the employer fails to intervene to prevent or stop the conduct because of the employee's sex. In Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL, the House of Lords said that an employer will not be liable for subjecting an employee to discrimination by a third party other than an employee, unless the reason for the failure to take action to prevent or reduce the discrimination is related to the employee's sex, race, etc, or the third party was acting as the employer's agent. Macdonald was decided under the repealed Sex Discrimination Act 1975 but employers would be advised to assume that they should protect employees from all types of discrimination by third parties.

In Gravell v London Borough of Bexley EAT/0587/06 (decided under the now repealed Race Relations Act 1976), the EAT refused to strike out a claim that the respondent's alleged policy of not challenging racist behaviour by clients was capable, of itself, of having the effect of creating an offensive environment for her.

In Conteh v Parking Partners Ltd EAT/0288/10 (decided under the now repealed Race Relations Act 1976), the EAT upheld the employment tribunal decision that the employer was not liable in respect of the harassment of one of its employees by a person who was employed by a third party over whom the claimant's employer had no control.

In a case that may have implications for discriminatory behaviour by third parties, the Supreme Court held that the Ministry of Justice was vicariously liable for the conduct of a prisoner whose negligence caused a prison officer employee to suffer a back injury while working in the prison kitchen (Cox v Ministry of Justice [2016] IRLR 370 SC). The Supreme Court noted that the case addressed the question of "what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual".

Prior to 1 October 2013, under s.40 of the Equality Act 2010, an employer could be liable if:

  • an employee was harassed by a third party during the course of his or her employment;
  • the employer knew that the employee concerned had been subjected to harassment by a third party on at least two other occasions (whether by the same or a different third party); and
  • the employer had failed to take such steps as would have been reasonably practicable to prevent the third party from harassing the employee.

The third-party harassment provisions in s.40 of the Equality Act 2010 were repealed with effect from 1 October 2013 with the result that no claim for alleged third-party harassment can be made under s.40 in respect of acts that took place on or after that date. However, it appears that a claim may still have been able to be issued on or after 1 October 2013 in respect of acts of third-party harassment that occurred prior to that date.

Additional resources on third parties

FAQs

Protection from Harassment Act 1997

Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to "harassment". The harassment may consist of bullying, intimidation or harassment, and does not need to be on a prohibited ground (Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL). In Majrowski the claimant argued his manager had bullied him because he was gay. This included being excessively critical of and strict about his time-keeping and his work; isolating him by refusing to talk to him; being rude and abusive in front of other staff; and imposing unrealistic targets for his performance and threatening him with disciplinary action if he did not achieve them.

In Hammond v International Network Services UK Ltd [2007] EWHC 2604 HC, the High Court held that to succeed under the Protection from Harassment Act 1997 an employee must show that there was an element of real seriousness to the harassment. The actions must be calculated in an objective sense to cause alarm and distress and must be capable of being objectively judged to be oppressive and unreasonable. Irritating, annoying and upsetting conduct, such as shouting and swearing by a supervisor, will not necessarily be a breach of the Act. The High Court found that the matters complained of by Mr Hammond were trivial or could be traced back to reasonable operational decisions taken by the employer.

However, in Green v DB Group Services (UK) Ltd [2006] IRLR 764 HC the High Court awarded a claimant damages of £852,000 after she suffered a "relentless campaign of mean and spiteful behaviour" by four women who worked closely with her, and in respect of a male co-worker's behaviour, which was found to be "domineering, disrespectful, dismissive, confrontational and designed to undermine and belittle her in the view of others". Although each incident viewed separately was not of major significance, it was their cumulative effect that was important. The bank was found liable for the bullying. This also amounted to harassment under the Protection from Harassment Act 1997. The High Court found that a reasonable employer would have intervened as soon as it was aware of the bullying, but managers in this case had closed their eyes to it. This emphasises the need for employers to ensure that they have in place an anti-bullying policy that is well publicised to all workers and properly enforced. As soon as an employer is aware that bullying is occurring it should take steps to deal with it.

In Rayment v Ministry of Defence [2010] IRLR 768 HC, the High Court referred to Veakins v Kier Islington Ltd [2010] IRLR 132 CA, in which the Court of Appeal held that, since Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL, courts have had to consider whether or not the conduct complained of is "oppressive and unacceptable" as opposed to merely unattractive, unreasonable or regrettable. In Rayment, the High Court awarded the claimant damages under the Protection from Harassment Act 1997, of £5,000 for injury (the exacerbation of the claimant's existing depression) and distress caused by "oppressive and unacceptable conduct" and £500 for distress caused by the display of photographs in a restroom that was used only by the claimant.

In Levi and another v Bates and others [2015] EWCA Civ 206 CA, the Court of Appeal held that a claim under the Protection from Harassment Act 1997 can be brought by someone who is not the target of the conduct complained of, "if he or she is foreseeably likely to be directly alarmed or distressed by it".

Victimisation

Section 27 of the Equality Act 2010 defines victimisation as where a person (A) subjects another person (B) to a detriment because:

  • B does a protected act; or
  • A believes that B has done, or may do, a protected act.

The following are protected acts:

  • bringing proceedings under the Equality Act 2010;
  • giving evidence or information in connection with proceedings under the Act;
  • doing any other thing for the purposes of or in connection with the Act; or
  • making an allegation (whether or not express) that A or another person has contravened the Act.

In Aston v The Martlet Group Ltd EAT/0274/18, the Employment Appeal Tribunal (EAT) confirmed that the concept of bringing proceedings under s.27 "should be construed as embracing a decision to continue with proceedings" and that the protected act is not restricted to the commencement of proceedings (see Ongoing claims).

Section 77(4) of the Act provides that the following are also to be treated as protected acts:

  • seeking a "relevant pay disclosure";
  • making or seeking to make a relevant pay disclosure; or
  • receiving information disclosed in a relevant pay disclosure.

A "relevant pay disclosure" is one made "for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether or to what extent there is, in relation to the work in question, a connection between pay and having (or not having) a particular protected characteristic" (s.77(3)) (see Equal pay).

Most claims of victimisation will be made where the employee has made an earlier complaint of sex discrimination. It will not matter whether or not the original underlying claim was successful. In a complaint of victimisation the sex discrimination is not in issue, it is the conduct of the employer in consequence of the employee bringing a claim or assisting another to bring a claim. An individual is protected from victimisation even if the allegation turns out to be wrong, provided that it was not made in bad faith (see Bad faith).

No comparator necessary

Under the victimisation provisions of the Equality Act 2010, the complainant does not need to compare his or her treatment to that of another real or hypothetical person to establish victimisation. The complainant simply needs to show that he or she was subjected to a detriment because he or she has done or may do a protected act.

Detriment

An employee will be treated as having been subjected to a detriment if he or she suffers a disadvantage that causes harm, damage or loss. The test for detriment is whether or not a reasonable worker would feel that he or she had been disadvantaged at work (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL).

In Rank Nemo (DMS) Ltd and others v Coutinho [2009] IRLR 672 CA (decided under the Race Relations Act 1976), the Court of Appeal held that the non-payment of a tribunal award to a former employee may constitute victimisation.

In Bouabdillah v Commerzbank AG ET/2203106/2012, the employment tribunal found that an employee was victimised by being dismissed from her new post because she had brought sex discrimination proceedings against her former employer.

In Das v Ayrshire and Arran Health Board EATS/0021/14, Mr Das was not offered an interview for the job that he had applied for even though he was the only applicant. The employment tribunal found that the decision to withdraw the post was an act of victimisation because the belief that Mr Das might "bring proceedings in the tribunal was a substantial influence in the decision to depart from the ordinary recruitment process". However, the tribunal went on to find on the facts that Mr Das "had only a slender chance of being appointed even though he was the only candidate". It assessed this as a 10% chance and reduced his compensation by 90%. The EAT upheld the tribunal decision.

Bad faith

Under s.27(3) of the Equality Act 2010, giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

The Employment statutory code of practice states that "if a worker gives evidence, provides information or makes an allegation in good faith but it turns out that it is factually wrong, or provides information in relation to proceedings which are unsuccessful, they will still be protected from victimisation".

In Saad v Southampton University Hospitals NHS Trust [2018] IRLR 1007 EAT, the EAT held that the primary question, when deciding if an employee acted in bad faith under s.27(3), is whether or not the employee acted honestly in making the discrimination allegation, not the employee's ulterior purpose. The EAT found that, although the employee may have raised his race discrimination allegation with the ulterior purpose of delaying a performance assessment, he had not made the allegation dishonestly as he had a genuine belief that it was true. The EAT was satisfied that, while the employee's motivation might be relevant to the question of remedy, it was not sufficient for a finding of bad faith.

However, in HM Prison Service and others v Ibimidun [2008] IRLR 940 EAT, a case decided under the now repealed Race Relations Act, the EAT held that an employee, who was dismissed because he had brought tribunal proceedings solely in order to harass his employer and colleagues, had not carried out a bona fide protected act and was not covered by the victimisation provisions. In Elegbede v Nexen Petroleum UK Ltd EAT/0298/10 (also decided under the repealed Race Relations Act 1976), the EAT upheld an employment tribunal decision that Mr Elegbede had not been victimised. While the tribunal found that Mr Elegbede had suffered less favourable treatment in one limited respect with regard to a complaint that he had made during his employment, it concluded that "since the allegation underlying that complaint was made falsely and in bad faith" the victimisation claim could not succeed.

It will not be victimisation where an employer can show that the employee was subjected to the detriment for a reason unrelated to the employee having made a protected act.

In Martin v Devonshires Solicitors EAT/0086/10 (decided under the repealed Sex Discrimination Act 1975 and Disability Discrimination Act 1995), the EAT confirmed that, where an employer dismisses an employee in response to his or her protected act, the employer may not have unlawfully victimised the employee where the reason for dismissal is some feature of the protected act that can be treated as separable. The EAT stated that, in dismissing the employee's victimisation claims, the tribunal had, in effect, found that the reason for the dismissal "had nothing to do with the fact, as such" that she had complained of discrimination, but was because she "was mentally ill and ... the significance of the complaints was as evidence of that fact".

In Woodhouse v West North West Homes Leeds LTD [2013] IRLR 773 EAT, the EAT overturned the employment tribunal decision that an employee who was dismissed following multiple race discrimination and related grievances, which had not been made in bad faith, was not victimised. The EAT held that the employer's position that the employee "was dismissed because he had lost trust and confidence in the organisation, when coupled, as the employment tribunal found it to be, with the avoidance of further repetition of grievances ... is no more than the [employee] being dismissed, if not because of past protected acts, then because of the belief of the likelihood of future protected acts". On the tribunal's own factual findings, "that amounted to victimisation within the scope of s.27(1)" of the Equality Act 2010 and any other conclusion was an error of law. The EAT warned against using Martin as a "template" for identifying "genuinely separable features" in alleged victimisation cases. Describing Martin as an "exceptional" case, the EAT continued "very few cases will have grievances based on paranoid delusions about events that never happened".

The motivation of the person committing the act of victimisation may be conscious or unconscious: Nagarajan v London Regional Transport [1999] IRLR 572 HL (decided under the repealed Race Relations Act 1976). The claim of victimisation related to the rejection of Mr Nagarajan's application for employment. He had previously brought claims of racial discrimination against the respondent company and believed that that was the reason for its rejecting his application. The House of Lords allowed the appeal and held that the key question for victimisation, as well as direct discrimination, is why the complainant received less favourable treatment. The House of Lords held that "if the answer to this question is that the discriminator treated the person victimised less favourably by reason of his having done [a protected act]", the case falls within the definition of victimisation. The House of Lords emphasised that the less favourable treatment still constitutes victimisation "even if the discriminator did not consciously realise that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act". The House of Lords found that a subconscious influence could be a substantial cause of victimisation.

However, those committing the alleged act of victimisation must have knowledge of the protected act: Scott v London Borough of Hillingdon [2001] EWCA Civ 2005 CA (decided under the repealed Race Relations Act 1976).

In Chief Constable of Greater Manchester Police v Bailey [2017] EWCA Civ 425 CA, the employee claimed that the termination of his secondment (which had come about because he had previously brought a successful race discrimination claim against the employer) was an act of victimisation. The employment tribunal upheld the claim, noting that the employee was only on secondment because of the agreement he had made with his employer, "an agreement which is inextricably linked to, and arises out of, his protected act of bringing his previous proceedings". The Court of Appeal held that the employment tribunal had erred in applying the "but for" test, rather than the "reason why" test, which applies to both direct discrimination and victimisation claims. Allowing the employer's appeal, the Court of Appeal held that, although "it is self-evidently the case that there would have been no secondment to terminate if the claimant had not brought his earlier claims ... that kind of 'but for' causative link does not mean that the termination was 'because of' his earlier claims in the relevant sense". The Court acknowledged that this point has been made in a number of cases and referred to Ahmed v Amnesty International [2009] EAT/0447/08, in which the EAT held that "the fact that a claimant's sex or race is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment".

In Pasab Ltd t/a Jhoots Pharmacy & Jhooty v Woods EAT/0454/11, decided under the repealed Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660), the employment tribunal found that the employer dismissed the employee because it believed that she had referred to the employer as being "a little Sikh club" and it regarded this as a racist comment. The EAT held that it was not open to the tribunal to find that the employee's dismissal was an act of victimisation because "if the remark was viewed not as a protected act but an offensive racist comment ... then the reason for dismissal was not that the claimant had done a protected act, but some other feature genuinely separable from the implicit complaint of discrimination". The Court of Appeal upheld the EAT decision (Woods v Pasab Ltd (t/a Jhoots Pharmacy) and another [2013] IRLR 305 CA).

Ongoing claims

Under previous legislation, to constitute victimisation, the act of victimisation had to be "by reason that" the claimant has done the protected act. In Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 HL, which was decided under the repealed Race Relations Act 1976, the House of Lords held that the refusal to supply a reference to support promotion applications while race discrimination proceedings were in progress was not victimisation. The reference was not withheld "by reason that" the claimant had brought discrimination proceedings, but rather due to the employer's temporary need to preserve its position in the outstanding proceedings. The Equality Act 2010 uses the word "because" rather than "by reason that" but it is suggested that the same principles will apply and that Khan would be decided in the same way under the Act.

The EAT in Commissioners of Inland Revenue and another v Morgan [2002] IRLR 776 EAT (decided under the Race Relations Act 1976) read Khan as creating a specific exception to victimisation where the act complained of is an honest and reasonable step in the proper conduct of the respondent's defence.

However, in St Helens Metropolitan Borough Council v Derbyshire and others [2007] IRLR 540 HL, which was decided under the now repealed Sex Discrimination Act 1975, the House of Lords held that unpleasant letters sent to 39 equal pay claimants pointing out that they might be responsible for the loss of colleagues' jobs if they won had crossed the line between taking those reasonable steps and subjecting the claimants to a detriment.

In Croad v University and College Union EAT/0012/11 (decided under the repealed Disability Discrimination Act 1995), the EAT upheld the employment tribunal decision that the union had not victimised the member by withdrawing legal support from her in connection with a claim against her employer at a time when she had accused the union of disability discrimination. On the facts, which involved a history of "antipathy" between the member and the union, the tribunal was satisfied that the union "did not act as it did because the [member] gave notice of or brought proceedings but because the bringing of proceedings created a conflict of interest".

Post employment

Section 108 of the Equality Act 2010 deals with prohibited conduct after the end of the working relationship. Section 108(1) and (2) prohibit post-employment discrimination and harassment respectively, while s.108(7) states that "conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A". However, this anomaly was resolved by the Court of Appeal in Rowstock Ltd and another v Jessemey [2014] IRLR 368 CA. The Court of Appeal held that the apparent exclusion of post-employment victimisation was the result of an inadvertent drafting error and that the Equality Act 2010 can be interpreted to cover post-employment victimisation. Further, the EHRC guidance states that, if a worker's former employer refuses to give him or her a reference because he or she supported someone else's claim for sexual harassment, this would almost certainly be victimisation (What equality law means for you as an employer: dismissal, redundancy, retirement and after a worker has left). The guidance goes on to say that: "It does not matter how long ago the person worked for you, as long as the worker could show that any unlawful discrimination arises out of and is closely connected to the previous employment relationship."

In Aston v The Martlet Group Ltd EAT/0274/18, the EAT commented that s.108 does not "mean that there is jurisdiction to entertain any and every claim of discrimination or victimisation presented by an ex-employee". The EAT drew attention to the fact that Parliament had not merely stipulated that the conduct must be something that "arises out of" the past relationship, but also that it must be "closely connected" to it. The EAT said that both tests must be satisfied, and the second must add something to the first.

Additional resources on victimisation

FAQs

Burden of proof

Section 136 of the Equality Act 2010 deals with the application of the burden of proof and provides that, where an applicant proves facts from which the tribunal could conclude that the respondent had committed a discriminatory act, the tribunal must uphold the complaint unless the respondent provides an adequate non-discriminatory explanation for the treatment. For further information see Burden of proof in discrimination cases (in Tribunal procedures and penalties).

Dress and appearance requirements

Employers that apply different clothing or appearance rules to men and women leave themselves open to claims of sex discrimination. However, the courts have been willing to accept that employers can have different dress codes for men and women where these apply to conventional standards of dress.

In M Schmidt v Austicks Bookshops Ltd [1977] IRLR 360 EAT (decided under the now repealed Sex Discrimination Act 1975), the Employment Appeal Tribunal (EAT) held that there was no less favourable treatment of women in a rule preventing female employees from wearing trousers when working in sight of the public. In Smith v Safeway plc [1996] IRLR 456 CA (also decided under the repealed Sex Discrimination Act 1975), the Court of Appeal approved what it considered to be the principles in Schmidt. Mr Smith was a delicatessen assistant in a supermarket. Both male and female food handlers had to wear hats and both sexes were prohibited from having "unconventional" hairstyles. However, the rules on hair length were different for men and women in that women could have long hair if they clipped it back but men could not let their hair grow below shirt-collar length.

Smith was dismissed when he refused to have his hair cut. The Court of Appeal held that the prohibition of ponytails for male employees did not constitute less favourable treatment because the same standard of conventional appearance at work was rigorously applied to both male and female employees.

It stated that a code that applies a conventional standard of appearance is not of itself discriminatory. While one of the aims of the sex discrimination legislation is to prevent unequal treatment of the sexes arising from conventional attitudes, this does not render discriminatory an appearance code that applies a common standard as to what is conventional.

In assessing whether or not the requirement would be discriminatory the employer should ensure that dress or appearance rules are imposed to a similarly restrictive degree on men and women.

Employers should not assume, because of M Schmidt v Austicks Bookshops Ltd [1977] IRLR 360 EAT and Smith v Safeway plc [1996] IRLR 456 CA, that it will not be unlawful sex discrimination to prevent a woman wearing trousers or a man having long hair. Standards of conventional dress change over time and may vary according to the context. Trousers are now conventional business dress for many women. There have been a number of employment tribunal cases that have held that instructions to women not to wear trousers have constituted unlawful sex discrimination.

In Stoke-on-Trent Community Transport v Cresswell EAT/359/93 (decided under the repealed Sex Discrimination Act 1975), the EAT found that a female employee dismissed for wearing trousers in breach of the respondent's dress code was directly discriminated against in circumstances where the employer imposed no equivalent dress or appearance rule on male employees.

The Employment statutory code of practice (on the EHRC website) states that: "Where men are required to wear suits, it may be less favourable treatment to require women to wear skirts, if an equivalent level of smartness can be achieved by women wearing, for example, a trouser suit."

In Pell v Wagstaff and Wheatley Hotel [2000] ET/2801882/99 (decided under the repealed Sex Discrimination Act 1975), a tribunal held that Mr Pell had been subjected to unlawful sex discrimination when he was refused a job as barman at the Wheatley Hotel unless he cut off his ponytail. The tribunal held that Mr Wagstaff's requirements of men and women were not even handed. Women could have long hair but would need to grip or tie it back. Mr Pell was prepared to do whatever might have been necessary to keep his hair tidy and neat but that was not good enough. The tribunal concluded that there was a more onerous requirement upon men that resulted in sex discrimination. However, in Dansie v Commissioner of Police for the Metropolis EAT/0234/09 (also decided under the Sex Discrimination Act 1975), the EAT upheld a tribunal decision to dismiss a sex discrimination claim by a male trainee police officer who was required to get his hair cut.

Some aspects of a dress and appearance code that are applied to all employees or to a particular category of employee, whether male or female, may give rise to indirect discrimination in relation to the protected characteristic of sex (or indeed, other protected characteristics). However, the employer may be able to justify the provision, criterion or practice. The Employment statutory code of practice (on the EHRC website) states that: "dress codes - including rules about jewellery - may indirectly discriminate against workers sharing a protected characteristic. To avoid indirect discrimination, employers should make sure that any dress rules can be justified as a proportionate means of achieving a legitimate aim such as health and safety considerations." See Indirect discrimination and Justification.

In 2017, the Government rejected a recommendation by the Parliamentary Women and Equalities Committee and Petitions Committee to amend the Equality Act 2010 to define what legitimate aims may justify a discriminatory dress code, stating that "scope for redress already exists [in the Equality Act 2010]". However, on 17 May 2018, the Government Equalities Office produced guidance on dress codes in the workplace (Dress codes and sex discrimination: what you need to know). The guidance sets out how the law might apply in cases of sex discrimination where an employer requires female staff to wear, for instance, high heels, make-up, hair of a particular length or style, or revealing clothing.

Additional resources on dress and appearance requirements

FAQs

Policies and documents

Occupational requirements

Paragraph 1 of sch.9 to the Equality Act 2010 contains an exception from unlawful direct discrimination in recruitment and opportunities for promotion, transfer or training, where a requirement to have a particular protected characteristic applies.

Unlike the other protected characteristics, for the protected characteristic of sex, this exception cannot be relied on with regard to the dismissal of an employee or the termination of a contract worker's work (para.6 of sch.9 to the Act).

An occupational requirement will apply where, having regard to the nature or context of the work, the employer applying the requirement shows that:

  • being of a particular sex is an occupational requirement;
  • the application of the requirement is a proportionate means of achieving a legitimate aim; and
  • the person to whom the requirement is applied is not of the required sex.

The Equality Act 2010 explanatory notes (on the National Archives website) state that while this provision replicates previous exceptions, it differs in that "it makes clear that the requirement must pursue a legitimate aim and that the burden of showing that the exception applies rests on those seeking to rely on it".

The Employment statutory code of practice (on the EHRC website) cites as an example: "a women's refuge which lawfully provides services to women only can apply a requirement for all members of its staff to be women".

The requirement that it must be proportionate to apply the requirement to be of a particular sex in a particular case may mean that, even if an occupational requirement applies to some of the duties of a job, the exception could not be relied on if there were others of the required sex who could do these duties, if the work were redistributed or reorganised.

In Smith v Reliance Secure Task Management Ltd t/a Reliance Monitoring Services [2002] ET/1400993/02 (decided under the now repealed Sex Discrimination Act 1975), an employment tribunal found that no genuine occupational qualification applied to the recruitment of someone to tag offenders. Reliance argued that the job needed to be held by a woman to preserve decency or privacy because it was likely to involve physical contact with women in circumstances where they might reasonably object to its being carried out by a man. The tribunal noted that tagging did not require the removal of any clothing and that any physical contact would be limited to just above the ankle or wrist. It likened it to physical contact required in a shoe shop or jewellers. Alternatively, the tribunal considered that the number of females already employed in the job was sufficient to meet the employer's likely requirements without undue inconvenience. Although, unlike the repealed Sex Discrimination Act 1975, there is no specific provision in the Equality Act 2010 for an occupational requirement based on privacy or decency, it is likely that similar principles will apply.

Other exceptions

Religious requirements relating to sex

There is a further special exception in para.2 of sch.9 to the Equality Act 2010, where employment or appointment to a personal or public office is for the purposes of an organised religion. This applies where a person (A) applies a requirement related to sex and A can show that:

  • the employment is for the purposes of an organised religion;
  • the application of the requirement engages the compliance or non-conflict principle; and
  • the person to whom A applies the requirement does not meet it.

The "compliance principle" is engaged if the requirement is applied so as to comply with the doctrines of the religion.

The "non-conflict principle" is engaged if "because of the nature or context of the employment, the requirement is applied so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion's followers".

This special exception is potentially available to employers and those with the power to appoint or remove officer-holders, or to recommend an appointment to public office.

The Equality Act 2010 explanatory notes (on the National Archives website) state that "the requirement must be crucial to the post, and not merely one of several important factors". The special exception "is intended to cover a very narrow range of employment: ministers of religion and a small number of lay posts, including those that exist to promote and represent religion". Both the Equality Act 2010 explanatory notes and the "EHRC Employment statutory code of practice" state that appointing a person who meets the requirement must be a proportionate way of either complying with the doctrine of the religion or avoiding conflict as specified above. However, this is not expressly stated in para.2 of sch.9 to the Act.

The explanatory notes state that this "exception would apply to a requirement that a Catholic priest be a man and unmarried".

The burden of proof is on the employer to show that an occupational requirement applies to particular work. The judge in R (on the application of Amicus - MSF section and others) v Secretary of State for Trade and Industry and Christian Action Research Education and others [2004] IRLR 430 HC (the unsuccessful judicial review proceedings brought by a group of trade unions that challenged the legality of a similar exception in the now repealed Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661)), confirmed that such exceptions should, in principle, be given a narrow construction as being a derogation from the general prohibition on discrimination. The judge considered that employment as a teacher in a faith school was unlikely to fall within this exception since it would not be "for the purposes of an organised religion". Although the case concerned occupational requirements relating to sexual orientation, similar principles would apply to occupational requirements relating to sex.

The occupational requirement provisions provide a defence to what would otherwise be unlawful discrimination if the employer chose to limit that particular job to people of the required sex. However, an employer is not required by the Equality Act 2010 to limit any job to people of a particular sex.

National security

Section 192 of the Equality Act 2010 contains an exception from unlawful sex discrimination for acts done for the purpose of safeguarding national security, if the acts are proportionate for that purpose.

Sport

Section 195 of the Act allows separate sporting competitions to be organised for men and women where physical strength, stamina and physique are major factors in determining success or failure, and in which one sex is generally at a disadvantage in comparison with the other.

Armed forces

Paragraph 4 of sch.9 to the Equality Act 2010 provides that a person does not contravene certain provisions of s.39 of the Act connected with recruitment and promotion etc, by applying a requirement to be a man where the application of that requirement is a proportionate means of ensuring the combat effectiveness of the armed forces.

Insurance contracts

Paragraph 20 of sch.9 to the Act allows employers to treat men and women differently with regard to "insurance or risk-related matters where the difference is done by reference to reliable actuarial or other data and it is reasonable in all the circumstances" (Equality Act 2010 explanatory notes (on the National Archives website)).

Protection of women

Paragraph 2 of sch.22 to the Act permits employers to treat women differently to comply with laws protecting women in relation to pregnancy or maternity or any other circumstances giving rise to risks specially affecting women. The explanatory notes to the Act state that: "It may be lawful for a road haulier to refuse to allow a woman lorry driver to transport chemicals that could harm women of child-bearing age".

Educational appointments

The Equality Act 2010 explanatory notes (on the National Archives website) explain that para.3 of sch.22 to the Act "provides an exception from the provisions on sex ... discrimination for certain posts in ... institutions of further or higher education where their governing instrument requires ... that a particular academic position must be held by a woman" where the governing instrument was made before 16 January 1990.

Communal accommodation

Paragraph 3 of sch.23 to the Equality Act 2010 permits an employer lawfully to restrict communal accommodation and related benefits, facilities or services to one sex only as long as the accommodation is managed in a way that is "as fair as possible to both men and women". Account must be taken of whether, for example, the accommodation should be altered or extended. The employer must also make such arrangements as are reasonably practicable to compensate for the refusal of the accommodation, benefit, facility or service. The Equality Act 2010 explanatory notes (on the National Archives website) suggest that such compensation may compensate a woman who is unable to attend a residential training course on a worksite with men-only accommodation by sending her on another course or arranging alternative accommodation.

Terms

Unenforceable terms

Section 142 of the Equality Act 2010 renders unenforceable against a person contractual terms that constitute, promote or provide for treatment, of that person or another person, that is prohibited under the Act. Section 143 of the Act provides that the county court may order that a term rendered unenforceable by s.142 is removed or modified.

Section 142 does not apply to a term of a contract that has been modified by an equality clause or a maternity equality clause because once the term is modified it is no longer discriminatory (see Equal pay).

No contracting out

Section 144 of the Equality Act 2010 prohibits contracting out from its provisions, except where the contract in question settles a complaint and is either made with the assistance of a conciliation officer or constitutes a qualifying compromise contract.

Positive action

General positive action

Section 158 of the Equality Act 2010 allows a person (P) to take action in the following circumstances:

  • Where P reasonably thinks that persons who share a protected characteristic suffer a disadvantage connected to that characteristic, P may take any action that is a proportionate means of enabling or encouraging persons to overcome or minimise that disadvantage.
  • Where P reasonably thinks that persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, P may take any action that is a proportionate means of meeting those needs.
  • Where P reasonably thinks that participation in an activity by persons who share a protected characteristic is disproportionately low, P may take any action that is a proportionate means of enabling or encouraging persons who share that protected characteristic to participate in that activity.

This would allow an employer to take measures in relation to persons from one sex, but only where one of the above conditions is met. The measures taken must be proportionate, having regard to the seriousness of the disadvantage etc, because, as the Equality Act 2010 explanatory notes (on the National Archives website) make clear, positive action measures in relation to one group "may result in people not having the relevant characteristic being treated less favourably".

Chapter twelve of the Employment statutory code of practice (on the EHRC website) discusses positive action in detail, and the subject is also covered in vol.1 of EHRC guidance: What equality law means for you as an employer: when you recruit someone to work for you (also on the EHRC website). The code cites mentoring, shadowing and training targeted at specified disadvantaged groups as examples of the measures that may be taken. The guidance states that positive action steps before or at the application stage "could include encouraging particular groups to apply, or helping people with particular protected characteristics to perform to the best of their ability (for example, by giving them training or support not available to other applicants)". In addition, the Equality Act 2010 contains a power permitting the Government to make regulations setting out what action is, and is not, permitted under s.158 in order to provide greater legal certainty about what action is likely to be regarded as proportionate. No regulations have yet been issued.

Additional resources on general positive action

FAQs

Positive action in recruitment and promotion

Section 159 of the Equality Act 2010, which came into force on 6 April 2011, permits an employer, in defined circumstances, to appoint or promote a person (A) with a protected characteristic in preference to another person (B) who does not have the protected characteristic.

Section 159(1) provides that an employer is permitted to take positive action only where it reasonably thinks that persons who share a protected characteristic suffer a disadvantage connected to that characteristic (s.159(1)(a)); or participation in an activity by persons who share a protected characteristic is disproportionately low (s.159(1)(b)). The Government Equalities Office has issued guidance on taking positive action (Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion (on the Home Office website)), and that guidance states that some: "information or evidence will be required to indicate to the employer that one of those conditions exists [ie disadvantage or under-representation] - but it does not need to be sophisticated statistical data or research". The guidance goes on to state that the employer may, for example, look at the profile of its own or a comparable workforce, or consult national data such as labour force surveys.

The positive action must be a proportionate means of the employer enabling or encouraging persons who share the protected characteristic to overcome or minimise the disadvantage or participate in the activity (s.159(4)(c)). The Government Equalities Office guidance Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion (on the Home Office website) states that, in order to ensure that positive action is proportionate, an employer "will need to balance the seriousness of the disadvantage suffered or the extent to which people with a protected characteristic are under-represented against the impact that the proposed action may have on other people". The guidance advises employers to: "consider if the proposed action is the only way to address the under-representation or disadvantage effectively, or if it would it be possible to achieve the same effect by other actions that are less likely to result in the less favourable treatment of other people."

Section 159(4) of the Act provides that an employer may take positive action only if:

  • A is as qualified as B to be recruited or promoted; and
  • the employer does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it.

The Equality Act 2010 does not set out what is meant by "as qualified as". However, the Equality Act 2010 explanatory notes (on the National Archives website) state that "the question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgment based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance". The Government Equalities Office guidance Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion (on the Home Office website)) refers to candidates being "of equal merit" to each other, not "as qualified as" each other. The guidance advises that: "Employers should establish a set of criteria against which candidates will be assessed when applying for a job". The guidance states that this can take into account: "a candidate's overall ability, competence and professional experience together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job ... [but] employers should ensure that any criteria do not indirectly discriminate against people who share a protected characteristic".

The absence of a statutory definition of "as qualified as" in the Equality Act 2010 means that case law will be required to clarify what is meant by this requirement. It is unclear whether or not "as qualified as" will be interpreted to extend to "equal merit" as assumed by the Government Equalities Office guidance.

Section 159 does not require an employer to take positive action and taking such action is not without risk. An employer that favours one applicant over another because he or she has a protected characteristic may be exposed to a claim of direct discrimination under s.13 of the Equality Act 2010 by the rejected applicant. The rejected applicant may argue that the employer has failed to satisfy all of the criteria required to trigger the application of, and protection afforded by, s.159. In Furlong v Chief Constable of Cheshire Police ET/2405577/2018, the first case in which the employment tribunal has given substantive consideration to the application of s.159, a white heterosexual man without a disability, applied to become an officer with Cheshire Police Force. After he had passed the assessment and interview stage, he was told that his application was unsuccessful. The force had a nationwide police initiative to improve diversity, which included applying positive action after the interview stage of its recruitment process.The tribunal accepted that, while the force had the "laudable aim" of improving diversity, applying positive action to a large-scale recruitment exercise at this stage was not a proportionate means of achieving the legitimate aim of improving diversity. Other diversity initiatives were already bearing fruit and the police force could not justify such a "radical and substantial" change to its recruitment process in the name of positive action. The tribunal found that the police force had committed discrimination in its recruitment exercise. If the police force had not applied positive action after the interview stage, the chances are that the claimant, who was a "relatively strong candidate", would have been recruited.

Additional resources on positive action in recruitment and promotion

FAQs

Pensions and other employment benefits

Occupational pension schemes

Section 61 of the Equality Act 2010 provides that an occupational pension scheme must be taken to include a non-discrimination rule.

A non-discrimination rule means that a responsible person (A) (ie a trustee or manager of the scheme; an employer whose employees are, or may be members of the scheme; or a person exercising an appointing function in relation to an office the holder of which is, or may be a member of the scheme) must not:

  • discriminate against another person (B) in carrying out any of A's function in relation to the scheme;
  • in relation to the scheme, harass B; or
  • in relation to the scheme, victimise B.

The provisions of an occupational pension scheme take effect subject to the non-discrimination rule, although the rule does not apply to a person who is a pension credit member of the scheme. Section 62 of the Equality Act 2010 confers a power on the trustees and managers of such a scheme to alter its rules by resolution (in certain circumstances) in order to conform with the s.61 non-discrimination rule.

A non-discrimination rule does not have effect where a sex equality rule or a maternity equality rule has effect in relation to an occupational pension scheme, or would have effect but for applicable exceptions contained in sch.7 of the Act. Section 67(1) of the Act provides that: "If an occupational pension scheme does not include a sex equality rule, it is to be treated as including one" (see Equal pay).

The Equality Act 2010 explanatory notes (on the National Archives website) state that the non-discrimination rule "does not apply to pension rights built up or benefits payable for periods of service before the commencement of this section" (which was on 1 October 2010). The notes go on to state that periods of service prior to this date will be subject to previous discrimination legislation. Occupational pension schemes were required to have non-discrimination rules in respect of sex prior to the implementation of the Equality Act 2010.

Public authorities

Section 149 of the Equality Act 2010, which came into force on 5 April 2011, sets out the general public sector equality duty. The first arm of the duty applies to all of the protected characteristics, while the second and third arms apply to all of the protected characteristics except for marriage and civil partnership.

A public authority must, in the exercise of its functions, take account of the three matters specified in the general equality duty. First, a public authority must have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010 (s.149(1)(a)).

Second, a public authority must have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not share it (s.149(1)(b)). This involves taking into account the need to:

  • remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
  • take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; and
  • encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

Third, a public authority must foster good relations between persons who share a relevant protected characteristic and those who do not (s.149(1)(c)). This involves taking into account the need to tackle prejudice and promote understanding.

Section 149(6) of the Equality Act 2010 provides that compliance with the general equality duty may involve treating some persons more favourably than others, but not where such conduct would otherwise be prohibited by or under the Act.

The general equality duty applies to public authorities that are listed in sch.19 to the Equality Act 2010. The list includes government departments, local authorities, NHS bodies, schools and other educational bodies and the police.

A person who is not a public authority but who exercises public functions must also, in the exercise of those functions, comply with the general duty (s.149(2)). A public function is one that is of a public nature for the purposes of the Human Rights Act 1998 (s.150(5)). The Equality and Human Rights Commission's (EHRC) Essential guide to the public sector equality duty (revised fourth edition, January 2014) explains that such bodies "will include private bodies or voluntary organisations which are carrying out public functions on behalf of a public authority", and gives the example of a private company running a prison on behalf of the Government. The guide goes on to state that "the company would, however, only be covered by the general equality duty with regard to its public functions, but not for other work, like providing security services for a supermarket".

In January 2013, the EHRC issued technical guidance on the public sector equality duty for England, Scotland and Wales, which "explains the three aims of the [duty], outlines the requirements of the Equality Act 2010 and the specific duty regulations and provides practical approaches to complying with the public sector equality duty". The guidance states that it "provides an authoritative, comprehensive and technical guide to the detail of the law". Although the guidance is not in the form of a statutory code of practice issued under s.14 of the Equality Act 2006, it may be used as evidence in legal proceedings and a body subject to the duty would need to justify a departure from it. The guidance is available on the EHRC website: Equality Act 2010 technical guidance on the public sector equality duty: England, Equality Act 2010 technical guidance on the public sector equality duty: Scotland and Equality Act 2010 technical guidance on the public sector equality duty: Wales.

The EHRC has issued other revised guidance for public authorities in England (and bodies with non-devolved functions in Scotland and Wales) which is available on the EHRC website: Meeting the equality duty in policy and decision-making (third edition revised October 2014) and Engagement and the equality duty (revised September 2014).

Specific public sector equality duties

The general duty is underpinned by specific duties, designed to support the functioning of the general duty. Under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI 2017/353), there are three specific duties: to publish equality information, to publish equality objectives and to publish gender pay gap information. The Regulations apply to public authorities in England and to the non-devolved functions of public authorities in Scotland and Wales. The relevant public authorities are listed in sch.2 to the Regulations. These specific public sector equality duties are intended to enable public authorities better to perform, and demonstrate their compliance with, the general public sector equality duty.

The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI 2017/353) revoked and replaced the previous Equality Act 2010 (Specific Duties) Regulations 2011 (SI 2011/2260) on 31 March 2017. The 2017 Regulations expanded the specific duties to introduce the gender pay gap reporting duty for public authorities.

In October 2011, the Government Equalities Office published a quick start guide to the specific duties: Equality Act 2010: Specific duties to support the equality duty. A quick start guide for public sector organisations.

The duty to publish equality information

Under the specific duty to publish equality information, a public authority listed in sch.2 to the 2017 Regulations must publish information to demonstrate its compliance with the general equality duty under s.149(1) of the Equality Act 2010, including, in particular, information relating to persons who share a relevant protected characteristic who are: its employees; and other persons affected by its policies and practices. The requirement to publish information about employees does not apply to public authorities with fewer than 150 employees. Public authorities must publish this information at intervals of no more than one year.

The EHRC has published Equality Information and the Equality Duty: A Guide for Public Authorities. The guidance recommends that public authorities with at least 150 employees publish:

  • the race, disability, gender, age breakdown and distribution of the workforce at different grades, and whether they are full or part time;
  • an indication of likely representation on sexual orientation and religion or belief, provided that no individuals can be identified as a result;
  • an indication of any issues for transsexual staff, based on engagement with transsexual staff or voluntary groups;
  • gender pay gap information (the EHRC guidance was published prior to the introduction of the specific gender pay gap reporting duty);
  • information about occupational segregation;
  • grievance and dismissal information for people with relevant protected characteristics;
  • complaints about discrimination and other prohibited conduct from staff;
  • details and feedback of engagement with staff and trade unions;
  • quantitative and qualitative research with employees, eg staff surveys;
  • records of how the authority has had due regard to the aims of the duty in decision-making with regard to employment, including any assessments of impact on equality and any evidence used; and
  • details of policies and programmes that have been put into place to address equality concerns raised by staff and trade unions.

The EHRC guidance says that it would also be useful for authorities to publish information broken up by protected group on:

  • return-to-work rates after maternity leave;
  • success rates of job applicants;
  • take-up of training opportunities;
  • applications for promotion and success rates;
  • applications for flexible working and success rates;
  • other reasons for termination such as redundancy and retirement;
  • length of service/time on pay grade, and;
  • pay gap for employees with other protected characteristics.

The duty to publish equality objectives

A public authority listed in sch.2 to the 2017 Regulations must also prepare and publish one or more "specific and measurable" objectives that it thinks it should achieve to comply with any part of the general equality duty. This information must be published at intervals of not greater than four years.

The information required under regs.4 and 5 must be published "in a manner that is accessible to the public", which could include "publication within another published document" (reg.6).

The EHRC has published Objectives and the Equality Duty: A Guide for Public Authorities, which includes guidance on engaging with members of the public, trade unions and other organisations to identify objectives, and on how to prioritise and select final objectives.

Specific public sector equality duties in Scotland and Wales

The 2017 Regulations apply to specified public authorities in England, specified cross-border Welsh authorities and specified public authorities operating across Great Britain in relation to non-devolved functions. There are separate provisions that apply to public authorities in Scotland (see Equality and human rights: key differences in Scotland and Northern Ireland for further information) and Wales.

The Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 (SI 2011/1064), which set out the specific duties for public authorities in Wales in relation to their devolved public functions, came into force on 6 April 2011. The specific duties for relevant Welsh public authorities are significantly more detailed than those that are applicable to English public authorities, and include duties to carry out impact assessments on policies and practices, to publish strategic equality plans and to report on compliance with the general equality duty. Technical guidance on the equality duty for the Welsh public sector is available on the EHRC website.

Additional resources on specific public sector equality duties

FAQs

Key references

Legislation

Equal Pay Act 1970
Sex Discrimination Act 1975
Employment Rights Act 1996
Protection from Harassment Act 1997
Civil Partnership Act 2004
Gender Recognition Act 2004
Equality Act 2006
Equality Act 2010
Recast Equal Opportunities and Equal Treatment Directive 2006/54/EC (consolidates the Equal Pay Directive (75/117/EEC), the Equal Treatment Directive (76/207/EEC) and the Burden of Proof Directive (97/80/EC))
Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/1102)
Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312)
Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 (SI 2001/2660)
Employment Equality (Sex Discrimination) Regulations 2005 (SI 2005/2467)
Sex Discrimination Act 1975 (Amendment) Regulations 2008 (SI 2008/656)
Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008 SI 2008/1966
Equality Act 2010 (Offshore Work) Order 2010 (SI 2010/1835)