Claire Knowles outlines the hurdles involved in bringing a discrimination claim under the Equality Act 2010 based on more than one ground
Discrimination law in the UK has developed over time to reflect our changing attitudes as a society. The Equality Act 2010 (EqA 2010) was introduced to streamline the various and complicated anti-discrimination acts into one coherent piece of legislation, providing individuals with protection against discriminatory and/or harassing treatment in an employment or services context that are connected to a specified ‘protected characteristic’. These nine protected characteristics are: gender, age, disability, marriage and civil partnership, pregnancy and maternity, race, sexual orientation, religion or belief, and gender reassignment.
While the EqA 2010 directly addresses the issue of discrimination on the grounds of protected characteristics, it arguably falls short of recognising that, in reality, people have multi-dimensional identities and may suffer discrimination because of more than one protected characteristic at the same time; for example, a Muslim man or an older woman. At present, it is arguable that EqA 2010 requires us to compartmentalise different aspects of our identity rather than embracing diversity and promoting social cohesion.
This issue was considered in the drafting of EqA 2010, resulting in the inclusion of s 14 which sought to address combined discrimination based on two protected characteristics. However, this particular protection has not been brought into force and is looking unlikely to ever be. This begs the question: is our current legal framework adequate to protect our multi-dimensional identities?
Does EqA 2010 go far enough?
In answering this question it’s important we recognise there are many different forms of ‘multi-discrimination’.
Standard multi-discrimination is when an individual is discriminated against on a number of different occasions because of different protected characteristics, for example, in respect of their race one day and their gender the next.
Additive, or cumulative, multi-discrimination is multiple forms of discrimination that are unrelated to each other but happen at the same time, for example, an employer loses his temper and makes a derogatory comment about an employee’s ethnicity and gender.
Each of these forms of multi-discrimination are already protected by EqA 2010, as an individual can pursue separate claims in respect of each protected characteristic.
However, where the EqA 2010 falls short, which s 14 sought to address to an extent, is intersectional (or combined, or compound) multi-discrimination – when discrimination arises from a specific combination of characteristics, for example, if an employer doesn’t hire someone because she is an older woman, but they would have hired an older man or a younger woman.
This was illustrated in the case of Miriam O’Reilly v BBC, concerning the former presenter of BBC television’s Countryfile, who was dismissed in 2009. In this case, O’Reilly had to choose whether to bring a claim based on age and/or sex separately, despite the reality being that it was the combination of the two protected characteristics that she based her allegations upon. Ultimately, she chose age discrimination and won her case.
This case, along with others, illustrates that individuals who are genuinely victims of intersectional multi-discrimination have a higher hurdle to pass to bring what are legitimate claims, because they are forced to bring separate claims for each protected characteristic for which they have to identify a comparator. While this could result in greater awards (an award for each claim), this doesn’t negate the initial disadvantage of not having specific legislation to cover the heart of their claim.
In recent years, our courts have sought to address this gap by taking a more purposive approach to its application of EqA 2010. However, given the evolving societal attitudes associated with diversity and social cohesion there is clearly a case to argue that EqA 2010, in its current form, does not go far enough and further legislation is required. However, unfortunately, no legislative changes are expected within the immediate future.
Claire Knowles is a partner at Acuity Legal and an employment law expert.