Main principles and definitions

Section 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.

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.

The Equality Act 2010 is thought, because of prohibition of less favourable treatment “because of” any protected ground, to regulate all discrimination based on assumed or perceived characteristics. In NI, judicial interpretation is 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..

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 treatment has the purpose or effect referred to in subsection (1)(b)” and s.26(3) explicitly defines and prohibits less favourable conduct arising from submission to or rejection  of unwanted conduct of a sexual nature or that is related to gender reassignment or sex. 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. 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.

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 victimisation 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 victimisation does not apply if the allegation made by the victim was both untrue and made in bad faith.

Section 111 EqA provides  in its first paragraph that: “… 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 broader exceptions applicable to religious organisations. In NI, the DDA does not provide an exception for genuine and determining occupational requirements, GORs or specific exceptions being provided in relation to other protected characteristics. The EqA and NI Age Regulations make provision for age differences in minimum wage schemes and seniority-linked pay differentials but the state “default retirement age” of 65 was abolished in April 2011. 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.