One of the most challenging aspects of discrimination law is the number of differing definitions of discrimination that exist. Take, for example, the definitions of direct discrimination. Direct discrimination on the grounds of sex, sexual orientation, race, religion, marital and civil partnership status and gender reassignment is defined in broadly the same way. It is treating someone less favourably on the prohibited ground.
The definitions of disability and age discrimination, on the other hand, are different. In particular, while it is unlawful to discriminate against a person on most of the prohibited grounds, it is not unlawful for an employer to treat a person unfavourably on the ground of his or her age, if it is justified in doing so.
Disability discrimination is even more complex: it may be lawful for an employer to discriminate against a person for a reason relating to his or her disability, if it has justification for doing so, but it is always unlawful to discriminate against the person on the ground of his or her disability itself.
There is another important difference between disability discrimination law and the rest of the discrimination legislation. Most of discrimination law includes the concept of indirect discrimination (indirect discrimination), which outlaws the use of unjustified barriers to employment opportunities that particularly disadvantage people of a particular sex, race, age group, religion or sexual orientation. The disability legislation does not include the concept of indirect discrimination. Instead, it imposes a duty on employers to make reasonable adjustments to their premises or working practices to accommodate disabled people (disability discrimination). If an employer fails to meet that duty, that amounts to disability discrimination.
Because of the substantial differences between disability discrimination law and other areas of discrimination law, it is dealt with in a separate section below.
All areas of discrimination law have two concepts of discrimination in common: they make it unlawful to harass a person or to victimise a person for bringing or supporting a discrimination complaint (victimisation).
Sex
Under the Sex Discrimination Act 1975, it is unlawful for a company to discriminate against a person on the grounds of his or her sex.
Pregnancy and maternity
The same Act makes it unlawful sex discrimination for an employer to treat a woman who is pregnant or on maternity leave less favourably, on the ground of her pregnancy, than it would treat her were she not pregnant. Likewise, it is sex discrimination for an employer to treat a woman less favourably because she is taking, is seeking to take, or has taken maternity leave.
Married and civil partnership status
As well as outlawing discrimination on the grounds of sex, the Sex Discrimination Act 1975 prohibits discrimination against a person because he or she is married. So it would be unlawful for a company to refuse to promote a woman because she was married, if it would have promoted a single woman of similar skills and experience.
Although people of the same sex cannot marry, they can, through an official registration process acquire civil partnership status. It is unlawful under the Sex Discrimination Act for an employer to discriminate against a person on the ground that he or she is a civil partner.
Discriminating against a person because he or she is single is not contrary to the Sex Discrimination Act 1975. It could, however, potentially amount to indirect discrimination on the ground of sexual orientation, since a larger proportion of homosexual people than of heterosexual people are single.
Race
The Race Relations Act 1976 prohibits discrimination on racial grounds. ‘Racial grounds’ covers not only race but also nationality, colour and ethnic or national origins.
By including the concept of national origins, the legislation encompasses discrimination against those who are part of a nation that is not currently a separate nation state, but can be identified by historical or geographical factors. This means, for example, that a person who is discriminated against because he or she is English or Scottish can claim race discrimination. In this context, ‘nationality’ includes not only legal nationality, but also the national identity that a person has adopted or is perceived to have.
In order to be a racial group defined by ethnic origins, a group must have a long shared history and cultural traditions, and also share other characteristics such as a common geographical origin, common ancestors, and a common language, literature or religion. The courts have ruled that Sikhs and Gypsies are distinct racial groups defined by ethnic origins, but that Rastafarians are not. Muslims probably are not a racial group. (Sikhs, Rastafarians and Muslims would all, however, be protected from discrimination on the ground of their religion.)
Discrimination does not need to relate to an individual’s own racial group to be unlawful. It would be race discrimination, for example, for an employer to dismiss a white employee because he or she objected to racist banter in the workplace, or refused to carry out an instruction to discriminate against customers of a certain race.
Age
Under the Employment Equality (Age) Regulations 2006, it is unlawful for an employer to discriminate against a person on the ground of his or her age, or apparent age, unless the employer can show the treatment is justified, that is, it is a proportionate means of achieving a legitimate aim. The Regulations apply not only to discrimination on the grounds of being too old but also on grounds of being too young.
The age discrimination legislation is unique in permitting direct discrimination on the prohibited ground if it is justified. In other cases, justification is only possible where the discrimination is indirect rather than direct. The test of justification is the same as that which applies in the context of indirect discrimination, and is discussed further below.
Sexual orientation
Discrimination on the grounds of sexual orientation is unlawful under the Employment Equality (Sexual Orientation) Regulations 2003. For these purposes, sexual orientation means sexual orientation towards people of the same sex, or people of the opposite sex, or people of the same sex and the opposite sex.
It is unlawful to discriminate against a person not only on the ground of his or her actual sexual orientation, but also on the ground of the sexual orientation he or she is perceived to have, even if that perception is false. Further, discrimination does not need to relate to an individual’s own sexual orientation to breach the law. It would be unlawful, for example, for an employer to discriminate against a worker because of the sexual orientation of his or her relative or friend, or because the worker objected to homophobic jokes.
Religion
Religious discrimination is unlawful under the Employment Equality (Religion or Belief) Regulations 2003. For these purposes, religion or belief covers any religion or religious or similar philosophical belief. The Advisory Conciliation and Arbitration Service has produced guidance on the Regulations (useful information). This suggests that the courts and tribunals will consider a number of factors when deciding what amounts to a religion, including collective worship, a clear belief system and a profound belief affecting the way of life or view of the world. Case law has suggested that whether views can properly be considered to fall into the category of a philosophical belief is whether they have sufficient cogency, seriousness, cohesion and importance, and are worthy of respect in a democratic society.
It is unlawful to discriminate against a person not only on the ground of his or her actual religion or belief but also on the ground of the religion or belief that he or she is perceived to have, even if that perception is false. Discrimination does not need to relate to an individual’s own religion to be unlawful. It would be unlawful, for example, for an employer to discriminate against a worker because of the religion or belief of his or her relative or friend, or because the worker objected to anti-religious jokes.
Gender reassignment
The Sex Discrimination Act 1975 outlaws discrimination against a person because he or she has undergone, is undergoing or intends to undergo gender reassignment.
Gender reassignment discrimination arises where an employer treats a person less favourably than it treats, or would treat, other people in the same, or not materially different, circumstances, and it does so on the grounds that the person intends to undergo, is undergoing or has undergone gender reassignment. In particular, it is discriminatory for an employer to treat an employee who is absent from work to undergo gender reassignment less favourably than it would have treated the individual if the absence were due to sickness or injury.
The Gender Recognition Act 2004 gives people who have changed their gender the opportunity to apply for a gender recognition certificate. The certificate entitles them to be treated as being of their acquired gender for most legal purposes, including employment. It is a criminal offence for an employer to disclose information about an employee or job applicant having applied for a certificate or about their previous gender, except in very limited circumstances.
The Government has published a useful guide to the law and good practice in this area (useful information).