Main principles and definitions

“Religion”, “belief”, “age” or “sexual orientation” are not defined in detail in the Equality Act 2010 or the equivalent provisions of NI law. Regulation 10 of the Equality Act 2010 now provides that “Religion means any religion and a reference to religion includes a reference to a lack of religion” and that “Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.” ‘Sexual orientation” is defined by s.12 as “a person's sexual orientation towards— (a) persons of the same sex, (b) persons of the opposite sex, or (c) persons of either sex”.

A person is regarded as disabled for the purposes of the Equality Act 2010 (the Act protecting only those with disabilities against disability-related discrimination) if s/he “has a physical or mental impairment … [which] has a substantial and long-term adverse effect on [his or her] ability to carry out normal day-to-day activities.”A disability will only be considered to have “substantial and long- term adverse effect” if it impacts substantially upon how the person performs day-to-day activities, and has lasted for at least 12 months, or the period for which it is likely to last is at least 12 months, or for the rest of the person’s life. This appears to be in broad compliance with the decision of the European Court of Justice Case C-13/05, Chacón Navas, but the difficulties of satisfying this test have given rise to considerable criticism. Recent case-law has seen the UK employment tribunals refer to the Chacón Navas decision as a guide to applying the statutory definition.

There is a consistent definition of direct discrimination across all GB legislation (s.13 Equality Act 2010): “a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” S.13(2) goes on to provide that “If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim”, s.13(3) that “If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B”. Only in relation to age can direct discrimination be justified. S.23 of the Equality Act 2010 provides that “On a comparison of cases for the purposes [establishing discrimination] there must be no material difference between the circumstances relating to each case”. In particular, where disability discrimination is at issue: “[t]he circumstances relating to a case include a person’s abilities”. The Equality Act 2010 also makes segregation on racial grounds a form of direct discrimination (s.13(5)). The position in NI is broadly similar though the definition of direct discrimination refers to less favourable treatment “on grounds of” rather than “because of” the protected characteristic.

The Equality Act 2010 provides (s.19) that “A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s”, s.19(2) further providing that “a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim”. The prohibition against indirect discrimination applies in GB to all the protected grounds whereas, in NI, there is not as yet any prohibition on indirect discrimination relate to disability. The definition of indirect discrimination in NI are materially similar to that in the Equality Act 2010 except that, where the discrimination at issue falls outside the scope of the 2000 Directives, the original definition of indirect discrimination that was used in the UK race and gender discrimination legislation continues to apply.

Insofar as it applies to disability, the Equality Act prohibits direct and indirect discrimination and also prohibits unjustified discrimination “arising from disability” (s.15), and failures to make reasonable adjustments (ss.20, 21). S.15 defines the former as occurring where “A treats B unfavourably because of something arising in consequence of B's disability, and … A cannot show that the treatment is a proportionate means of achieving a legitimate aim”, unless “A shows that A did not know, and could not reasonably have been expected to know, that B had the disability”. In NI, the DDA does not prohibit indirect discrimination but does (s. 3A) prohibit three different concepts of discrimination:

1. Discrimination for a reason relating to a disabled person’s disability, which can be objectively justified;
2. Direct discrimination on the grounds of a person’s disability in employment and occupation, i.e. where a person is treated differently because of the fact he or she is disabled and not for a related reason, which cannot be justified in law, and
3. Discrimination by virtue of a failure to comply with the duty to make reasonable adjustments, which cannot be justified in the employment and occupation context but can in the context of goods and services.

Some instances of “less favourable treatment for a reason which relates to the disabled person’s disability”, and failures to make reasonable adjustment where required to do so by the legislation, may be comparable in effect to indirect discrimination in some respects, but perhaps not all, though the decision of the House of Lords in the Malcolm case made it more difficult to establish the existence of less favourable treatment for a reason related to a disability. The replacement of “discrimination for a reason relating to a disabled person’s disability’ in the Equality act 2010 by discrimination “because of something arising in consequence of [a disabled person’s] disability” is designed to avoid the comparator requirement imposed by Malcolm.

The Equality Act 2010 is thought, because of prohibition of less favourable treatment “because of” any protected ground, is thought to regulate all discrimination based on assumed or perceived characteristics. In NI, robust judicial interpretation will be required to achieve this in relation to age and disability as the relevant legislation refers in each case to discrimination on the grounds of the age or disability of the person discriminated against. Such interpretation was accepted by the EAT as being possible in relation to disability following the decision of the European Court of Justice in the case of Coleman v. Attridge Law.

The Equality Act 2010 defines harassment as occurring (s.26(1)) where “(a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of—(i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B”. Section 26(2) further provides that “A also harasses B if—(a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b)” and s.26(3) that “

A also harasses B if—(a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and(c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct”. The Equality Act imposes a partly objective test to the question whether conduct which is not intended to violate dignity etc can nevertheless regarded as having the effect of so doing, s.26(4) providing that “In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—(a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

In NI a common definition of harassment has been incorporated into the legislation that covers the scope of the 2000 Directives across all the equality grounds, which is broadly similar to that in the Equality Act 2010, except that it refers to unwanted conduct which is engaged in “on [a protected] ground” rather than unwanted conduct “related to” a protected ground. Prior to the regulation of harassment by the 2000 Directives and the transposition of those Directives into domestic law, UK case-law had established that the race, gender and disability discrimination legislation prohibited harassment as a form of direct discrimination. The definition of harassment that emerged from this case-law is still applied to harassment falling outside the scope of the Directives and therefore outside the scope of the NI (though not the GM) legislation.

Victimisation is prohibited across all the equality grounds in GB and NI, the definitions which apply differing between the two jurisdictions. In GB the Equality Act 2010 provides (s.27(1)) that “A person (A) victimises another person (B) if A subjects B to a detriment because—(a) B does a protected act, or (b)A believes that B has done, or may do, a protected act”, s.27(2) defining as a “protected act” “(a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act”. The approach in NI is similar save that the person alleging victimization has to establish less favourable treatment on the ground of his or her having performed the protected act, a formulation which has given rise to significant difficulty at times. In both GB and in NI the protection from victimization does not apply if the allegation made by the victim was both untrue and made in bad faith.

Section 111 EqA provides that: “(1) A person (A) must not” instruct or cause or induce another person “(B) to do in relation to a third person (C)” anything which breaches the Act. In NI, both instructions to discriminate and pressure or inducement to discriminate are explicitly prohibited in the case of religious belief or political opinion.

In NI, instructions to discriminate and pressure or inducement to discriminate are explicitly prohibited on all the protected grounds, but only in the case of religion/ political belief and age can an individual bring enforcement action. In other cases the Equality Commission alone can act. Having said this, there is authority that a person who is instructed to discriminate against another can bring enforcement proceedings against the instructor where (as in Weathersfield Ltd. v Sargent, where the instruction was issued by an employer[1]) the instruction amounts to the imposition of a detriment on the person to whom it is issued.

Discriminatory advertisements are currently only explicitly prohibited in Northern Ireland, and then only when they relate to the race, religion/ belief or disability. Only the ECNI has the power to bring enforcement action in respect of such advertisements. Individuals across the UK may only bring legal claims in respect of discriminatory advertisements if they are actually subject to less favourable treatment on a prohibited ground, (as, for example, where they apply for the posts in question and are rejected on the relevant ground). Perhaps on this basis, the UK government has indicated that it considers that UK law is in conformity with the Feryn decision and it did not take the opportunity provided by the EqA to extend legislation in this area, instead removing such prohibitions (enforceable by the EHRC) as had previously applied

The EqA provides an exception for genuine and determining occupational requirements together with slightly broader exceptions applicable to religious organisations. In summary, a person (A) may discriminate in relation to appointments to jobs, etc, by requiring another person “to have a particular protected characteristic, if A shows that, having regard to the nature or context of the work— (a) it is an occupational requirement, (b) the application of the requirement is a proportionate means of achieving a legitimate aim, and (c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it). This exception applies across all the protected grounds. In addition, organisations whose “ethos [is] based on religion or belief” may require workers to be of a particular religion or belief where “having regard to that ethos and to the nature or context of the work—(a) it is an occupational requirement, (b) the application of the requirement is a proportionate means of achieving a legitimate aim, and (c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it). Further, where employment is “for the purposes of an organised religion”, the employer may apply a requirement “to be of a particular sex” or “not to be a transsexual person” or “not to be married or a civil partner’ or “not to be married to, or the civil partner of, a person who has a living former spouse or civil partner” or “a requirement relating to circumstances in which a marriage or civil partnership came to an end” or “related to sexual orientation” where such is necessary to comply with the doctrines of the religion or where “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”.

In NI, the DDA does not provide an exception for genuine and determining occupational requirements. In relation to nationality, NI’s RRO lists four types of jobs where being of a particular nationality could be a genuine occupational qualification whereas, in relation to grounds of race and ethnic and national origins, the exceptions have been replaced by a new generic rule for genuine and determining occupational requirement which is materially identical to that in the Equality Act 2010 and which also forms part of the regulations on discrimination on the grounds of sexual orientation, religion and belief and age in NI. NI legislation also contains provisions broadly along the lines of the wider GOQs discussed above which the Equality Act 2010 applies to employment by organisations whose ethos is based on religion or belief, and to employment “for the purposes of an organized religion”. While the broader GOQs in GM and NI legislation may be broader than permitted by Article 4(1)( and (2) of Directive 2000/78/EC, the UK courts have indicated that they will give a narrow interpretation to these exceptions in order to reflect EU law.

A specific exception for benefits related to ‘martial status’, originally contained in the 2003 Regulations, has been amended now following the introduction of civil partnerships for same-sex couples in the Civil Partnership Act 2004. As discussed above, the Equality Act 2010 and NI Age Regulations make provision for specific exceptions, including exceptions for mandatory retirement (until April 2011), age differences in minimum wage schemes and seniority-linked pay differentials.

Different exceptions exist for national security and public order across the various legislative instruments. The Armed Forces are largely exempt. Outside the scope of the 2000 Directives, exceptions exist for actions authorised by other statutes.

Research has shown that the problem of multiple discrimination, or “intersectional discrimination”, may be relatively widespread. This need to find solutions to the problem of multiple discrimination wase one of the main reasons for the establishment of the single Equality and Human Rights Commission in GB: see below. However, little has been done to develop legal rules to address this problem. There have been few cases where multiple discrimination points have been argued. Where they have, the UK courts have considered that claimants making claims for multiple discrimination must make separate discrimination claims on each of the different relevant grounds of race, ethnicity and national origin, and such claims will fail if there is insufficient evidence to make out a successful case in respect of any one of these separate claims. Academic and political discussions on how to resolve this problem continue and the Equality Act 2010 made provision for claims to be brought on a combination of two (but not more) grounds. The Coalition Government announced in March 2011 that this provision would not be brought into effect.