HR Focus - June 2010

'Double Trouble - Combined Discrimination Claims'

The Equality Act 2010 ('the Act') received Royal Assent on 8 April 2010 and the majority of its employment provisions are due to be implemented in October 2010 (albeit that some of its provisions may well be subject to review: prior to the election the Conservatives announced an intention not to implement the socio-economic and positive action provisions, and some of the provisions covering equal pay, in the event that they won the election. Whether they will still adopt this approach, given the new coalition Government, remains to be seen).

The Act has two main purposes, namely to harmonise and strengthen existing discrimination law. As regards the latter, the Act introduces a number of new provisions which include the ability for employees to bring combined discrimination claims: it’s been reported that some of the worst discrimination is suffered by people falling into more than one disadvantaged group. However, a Tribunal currently hearing a direct discrimination case must consider the grounds of, for example, race and sex separately, and may not make a global finding (e.g.) that the claimant was treated less favourably because she is a "Pakistani woman" (as compared, for example, to the treatment of a Pakistani man or a British (white) woman). To address this issue, section 14 of the Act (“Combined discrimination: dual characteristics") was introduced. This provision will enable direct discrimination claims to be brought in relation to a combination of any two (and only two) of the following protected characteristics:

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

This new right will only allow claims of combined direct discrimination to be brought: it won’t be possible to bring combined claims based upon indirect discrimination, harassment or victimisation. However, the Act will permit claimants to bring, in addition to a combined claim, separate claims in the same proceedings for each of the protected characteristics. For example, a black woman who is subjected to less favourable treatment might bring a section 14 claim based upon race and sex, as well as separate race and sex discrimination claims in the alternative. 

The underlying aim of this new protection against combined discrimination is easy to understand and one can envisage at least two combinations which may prove significant:

1) the incidence of disability increases markedly with age, and yet many employers are more reluctant to make reasonable adjustments for elderly employers who may have a comparatively short period of service remaining before retirement: maintaining such an attitude could well fall foul of a combined claim of age and disability discrimination;

2) some employees from ethnic minorities suffer teasing and bullying as a consequence of their attitudes or practices: a combined claim based upon race and religion is likely to prove a potent challenge in such circumstances.

From a practical perspective, perhaps the most vexed question is that of evidence: how does a claimant prove that it was the combination of two protected characteristics which resulted in his/her discrimination? Seemingly recognising this difficulty, section 14(3) of the Act states that the claimant need not show that the treatment complained about amounts to direct discrimination because of each of the characteristics in the combination (taken separately). Does this mean, therefore, that although I might not be able to succeed in establishing enough evidence for a claim of racial discrimination or religious discrimination on their own, I might nevertheless manage to prove a claim of combined racial and religious discrimination because there's a lower evidential threshold in such circumstances? Exactly how this will work out in practice remains to be seen, and no doubt this issue will be the subject of some early test cases under the new Act. 

One source has estimated that the new combined discrimination provision is likely to result in a significant increase in Employment Tribunal discrimination claims of up to 10%: no doubt we'll all have an opportunity to experience the practical issues of dealing with such claims in the relatively near future.

Mark Landon, Partner, mark.landon@weightmans.com