Is it time to legislate for dual discrimination?

10 Mar 2020 By Catherine Bourne

Catherine Bourne asks whether people suffering poor treatment because of a combination of two or more characteristics should be allowed to bring a single claim

Ten years since its implementation, there is no doubt that the Equality Act 2010 (EA) has transformed the landscape for employment rights. It brought together more than 100 pieces of legislation, creating a comprehensive legal framework with a single, clear ethos. Today discrimination claims rank among the most common employment tribunal cases, alongside more ‘standard’ claims such as unfair dismissal.

Under the EA, if an employee is discriminated against on multiple occasions but for different protected characteristics each time, they can bring separate claims in respect of each protected characteristic. Similarly, multiple claims can be brought in relation to a single event that is discriminatory in more than one way; for example, comments directed at a lesbian that are both sexist and homophobic.

However, there is a third form of multiple discrimination that does not fit neatly into the system of bringing multiple, separate claims. Intersectional discrimination, also known as combined discrimination, is where a person is discriminated against because of a particular combination of two or more protected characteristics; for example, a policy preventing employees from wearing headscarves would discriminate against Muslim women. The policy would not affect other women or Muslim men, so it could not be said to be purely sex or religious discrimination – rather, it is the unique combination of being both female and Muslim.

Section 14 of the EA was drafted to provide a discrete claim on the basis of intersectional discrimination, albeit with a limited scope. However, when the coalition government implemented the EA, this section was never brought into force (and there is currently no intention to do so) as the government took the position that this would be better for businesses. So the way intersectional claims are dealt with has been left to case law.

The approach taken by the employment tribunals in recent years has been that employees are protected from intersectional discrimination under the existing discrimination provisions, as the protected characteristic does not need to be the sole or principle reason the employee suffers discrimination for their claim to succeed; it only needs to be part of the reason.

A well-known example of this is in O’Reilly v BBC, in which former Countryfile presenter Miriam O’Reilly brought a claim against the BBC on the basis that she had been removed from the programme because she was an older woman. O’Reilly won her claim for age but not sex discrimination, as the tribunal concluded on the evidence that a man of the same age would also not have been kept on the programme. However, it also commented that if it had been only older women who suffered a detriment, this would have been both direct sex and age discrimination.

If people who suffer combined discrimination are already protected by existing law, then bringing section 14 into force is unlikely to be of much benefit on a practical level. However, this also means the justification for not bringing it into force – ie, that it is better for businesses – does not hold much weight.

For many, bringing a claim is not just about a financial award, but the recognition they were treated unfairly simply because of who they are. While the current law provides this recognition, the artificial separation of different parts of a claimant’s case may be unsatisfying for them. For claimants who have faced prejudice because of the stereotyping of particular combinations (for example, black men), succeeding in a claim for combined discrimination may be the only way to properly acknowledge the nature of the prejudice they have suffered. Given the highly personal nature of discrimination claims, the intangible benefit of this acknowledgement should not be underestimated.

Society now has a much greater understanding of unconscious biases, gender and race pay gaps and other common aspects of discrimination, and employers should avoid falling foul of existing discrimination legislation in new ways. Unfortunately employment rights are not likely to be a priority for the current government. However, employers can future-proof themselves by taking time to understand discrimination in a nuanced, holistic way.

Catherine Bourne is an associate in the employment law team at Kingsley Napley 

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