Institute of Employment Rights Conference Series

1. Institute of Employment Rights Conference Series Equality and Discrimination Multiple Discrimination and section 14 of the Equality Act 2010

2. Dual discrimination • Equality Act 2010 • Section 14: combined discrimination: dual characteristics • Direct discrimination to treat someone less favourably because of a combination of two relevant protected characteristics • Not now coming into force

3. Multiple discrimination (1) • “standard” multiple discrimination • Ie consecutive incidents • A person is discriminated against because of their race on one occasion • And because of their disability on another • Eg Al Jumard v Clywd Leisure Limited 2008 IRLR 345, EAT

4. Multiple discrimination (2) • Additive discrimination • A person is discriminated against because of both her sex and her sexual orientation • Eg Where a lesbian experiences homophobic and sexist bullying and harassment

5. Multiple discrimination (3) • Intersectional discrimination • where a person is discriminated against because of different characteristics in combination • Eg a driver does not allow a Muslim man onto a bus because he is stereotyped as a potential terrorist • But would allow a Muslim woman or Christian man

6. Protection for multiple discrimination • There is no difficulty with standard or additive discrimination where the law provides adequate protection • It is with intersectional discrimination that there has been understood to be a difficulty • It is this form of discrimination which section 14 seeks to address

7. Limits of section 14 • Only combination of 2/7 protected characteristics but could be more • Keeling v Public Information Pillars, ET • Only for direct discrimination • But examples of indirect discrimination • Azmi v Kirklees MBC 2007 IRLR 484 • And harassment • Eg Richmond Pharmacology v Dhaliwal 2009 WLR (D) 54

8. Gap in protection? • So if section 14 was introduced to deal with a particular problem, and is now not coming into force, does that mean that there is a gap in protection? • Can intersectional discrimination be challenged given the decision of the government not to bring it into force? •  need to ask: what gap did it seek to fill?

9. Origins of the gap • Tribunal must find primary facts in respect of each characteristic • Bahl v Law Society 2004 IRLR 799, CA • “it was necessary for the ET to find the primary facts in relation to each type of discrimination..then to explain why it was making the inference” • Network Rail v Griffiths-Henry 2006 IRLR 865, EAT

10. Burden of proof • Direct evidence of discrimination is rare • claimant to show prima facie case of both sex and race discrimination • Inferences will be drawn from primary facts • Employer to provide explanation for the treatment eg by pointing to comparators

11. Treatment for more than one reason • The protected characteristic need not be the sole or even the principal reason for the treatment; it is sufficient that it had a significant influence on the outcome • Owen & Briggs v James 1982 IRLR 502, CA • O’Donoghue v Redcar & Cleveland Borough Council 2001 IRLR 615, CA • Nagarajan v London Regional Transport 1999 IRLR 572, CA

12. O’Reilly v BBC • “the prescribed reason need not be the sole reason, or even the principal reason, why a person suffers detrimental treatment. Part of the reason that a woman over 40 is precluded from applying for the job is the fact that she is a woman. Another part of the reason is that she is over 40. Both of them are significant elements of the reason that she suffers the detriment. In such circumstances we consider it is clear that the woman is subject to both sex and age discrimination”.

13. The rise of the comparator • A comparison is required in order to show less favourable treatment • This came to mean that a claimant was required to point to an actual comparator • Or to carefully construct a “hypothetical comparator” • As a legal hurdle rather than of evidential assistance

14. And fall...The focus on the reason why • Shamoon v RUC 2003 IRLR 285, HL • “This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application?”

15. Further endorsement from the Supreme Court • Hewage v Grampian Health Board 2012 IRLR 870, SC • “The question whether the situations were comparable is, however, a question of fact and degree” • “Burden of proof provisions...will require careful attention when there is room for doubt...but they have nothing to offer where the tribunal is in a position to make positive findings on the evidence”

16. What about indirect discrimination? • MOD v Debique 2010 IRLR 471, EAT • “The nature of discrimination is such that it cannot always be sensibly compartmentalised into discrete categories. Whilst some complainants will raise issues relating only to one or other of the prohibited grounds, attempts to view others as raising only one form of discrimination for consideration will result in an inadequate understanding and assessment of the complainant’s true disadvantage. Discrimination is often a multi-faceted experience.’

17. What about harassment? • “the prohibition of harassment is not expressly comparative, and conduct involving a combination of protected characteristics is more likely to satisfy the standard of being “related to” each characteristic, even when considered separately. Moreover, because the associative definition of harassment used in the Bill eliminates any element of causation,” (Baroness Royall of Blaisdon HL Hansard 13 Jan 2010, col 546-7)

18. Support from European law? • Directives cover discrimination based on a single characteristic • But see Race Directive Preamble para 14 • ‘In implementing the principle of equal treatment irrespective of racial or ethnic origin, the Community should … aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.’