chapter 6 discrimination on the grounds of sex, sexual orientation, race, religion or belief

CHAPTER 6

Discrimination on the grounds of sex, sexual

orientation, race, religion or belief

Discrimination on the grounds of sex, sexual orientation, race, religion or belief

Overview• The current anti-discrimination law is

encapsulated in five separate pieces of legislation: the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003.

• These are to be replaced by a single piece of legislation which will come into effect over several years.

• The EU and decisions of the European Court of Justice have a considerable role in UK discrimination law.

THE EQUALITY BILL 2009The Bill aims to replace nine major pieces of

legislation by a single Act on equality matters. It will replace such legislation as the Sex Discrimination Act 1975 and the Race Relations Act 1976 and in addition aims to:

• ban age discrimination in the provision of goods, facilities and services. Prior to the Bill, age discrimination regulation was confined to tackling age discrimination in employment

• increase transparency, particularly to tackle the gender pay gap.


• extend the equality duty of public bodies. The Bill will also ensure that public bodies report on equality issues

• encourage the public sector to influence equality issues in the private sector through the use of its purchasing power

• extend the scope for positive action, so giving employers an opportunity to ensure diversity in their workforces

• strengthen enforcement by enabling tribunals, in discrimination cases, to make wider recommendations to employers on improvements

• simplify the law on disability discrimination so people are clearer about when they are protected.


THE SEX DISCRIMINATION ACT 1975, THE RACE RELATIONS ACT 1976, THE SEXUAL ORIENTATION REGULATIONS 2003 AND THE RELIGION OR BELIEF REGULATIONS 2003

• One major problem with the above legislation is that the titles no longer reflect the matters that are covered:


• The Sex Discrimination Act 1975 (SDA 1975) outlaws discrimination and harassment against civil partners and married (but not single) persons. ‘Sexual orientation’ means an orientation towards persons of the same sex, the opposite sex or both sexes. It does not include sexual practices or preferences.

• The Race Relations Act 1976 (RRA 1976) defines ‘racial grounds’ as meaning colour, race, nationality, national or ethnic origins. A racial group defined by colour may include people of more than one ethnic origin. ‘National origins’, are not limited to ‘nationality’ and to citizenship acquired at birth. . . .


• A person can become a member of a racial group through adherence – for example, by marriage.

• Although a racial group cannot be defined by language or religion alone, it has been accepted that Sikhs, Jews and Gypsies all fall within the scope of the Race Relations Act 1976. In contrast, Rastafarians have not established a separate identity by reference to their ethnic origins and are therefore not protected by the 1976 Act. This group should now get the benefit of the Religion or Belief Regulations 2003


Direct discrimination• Direct discrimination occurs where a

person is treated less favourably than a person of the opposite sex, a single person or a person not of the same racial group, etc, would be treated. This also applies to a generalised assumption that people in a particular group possess or lack certain characteristics.


Harassment• Harassment is ‘unwanted conduct

which has the purpose or effect of violating [an] other person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment’. In addition, unwanted verbal, non-verbal or physical conduct of a sexual nature is harassment.


Indirect discrimination• Indirect discrimination on the grounds

of colour or nationality occurs when an employer applies a requirement or condition such that the proportion of the applicant’s group who can comply with it is significantly smaller than the proportion of persons of a different group who can.


• Indirect discrimination on the grounds of race, religion, belief, ethnic or national origins, or sexual orientation occurs when a provision, criterion or practice is applied to employees or applicants generally but that puts some of them at a particular disadvantage, and the advantage thus gained by the others cannot be shown to be a proportionate means of achieving a legitimate aim.


Justification• Where indirect discrimination has

been established, the employer will have to satisfy the tribunal that the discriminatory requirement or condition was justifiable.


– A tribunal must assess the effects of the requirement and the employer must demonstrate that the requirement meets a legitimate objective and that the means chosen are appropriate and necessary (proportionate) to achieving that objective. Neither sex nor race discrimination can be justified on the basis of customer or union preferences.

Recruitment and selection• It is unlawful to discriminate on the

prohibited grounds in the arrangements made for the purpose of determining who should be offered employment, in the terms on which employment is offered, or by ‘refusing or deliberately omitting’ to offer employment.


– The legislation aims to prevent the emergence or continuation of discriminatory practices – ie conduct which does not, in itself, amount to unlawful discrimination but which in fact results in discriminatory treatment.

Lawful discriminationDiscrimination may be lawful in certain

circumstances, notably in respect of:• genuine occupational qualifications or

requirements• a statutory provision


• Genuine occupational requirements may apply for example where there is a need for authenticity in entertainment or a particular physiology, or where it is necessary to preserve decency or privacy, or where it is necessary to live in at the employment and there it is impractical to provide separate sleeping and sanitary facilities, and where the job-holder provides personal welfare services which can most effectively be provided by a person of a particular racial group.


• It is lawful to discriminate if it is necessary to do so to comply with a requirement of an existing statutory provision which, for example, affords protection to women in pregnancy or following childbirth.


Unequal treatment in employment and dismissals

It is unlawful for employers to discriminate:

• in the terms of employment• in access to promotion, transfer or

training, or to benefits, facilities or services.


• Positive action may be permissible in certain circumstances. The European Court of Justice has held that rules which allow women to be preferred for promotion over male colleagues are acceptable provided that the male and female candidates in question are equally qualified and that the sector in question is one in which women are under-represented.



• Positive action can be taken if it ‘reasonably appears to the person doing the act that it prevents or compensates for disadvantages linked to sexual orientation, religion or belief suffered by persons of that sexual orientation, religion or belief doing that work or likely to take up that work’.

• It is automatically unfair to dismiss a woman if the reason is in any way connected with her pregnancy.


Discrimination and the burden of proof• The burden of proof is formally reversed in anti-

discrimination cases. First, the claimant has to prove facts from which the employment tribunal could conclude in the absence of an adequate explanation that the respondent committed, or is to be treated as having committed, an unlawful act of discrimination. Second, the respondent has to prove that it did not commit, or is not to be treated as having committed, the unlawful act against the claimant. If the explanation is inadequate, the employment tribunal must uphold the complaint.


THE EQUAL PAY ACT 1970• An equality clause operates when a

person is employed on ‘like work’, work rated as equivalent or work of equal value to that of a person of the opposite sex in the same employment.

• Men and women are to be treated as in the same employment if they are employed at the same establishment or at establishments in Great Britain which observe common terms and conditions of employment.


• ‘Common terms and conditions’ means terms and conditions that are substantially comparable on a broad basis rather than the same terms and conditions.

• The effect of the equality clause is that any term in a person’s contract (whether concerned with pay or not) which is less favourable than in the contract of a person of the opposite sex is modified so as to be not less favourable.


What is ‘like work’?• The concept of ‘like work’ focuses on the

job rather than the person performing it. Once a person has shown that his or her work is of the same or broadly similar nature as that of a person of the opposite sex, unless the employer can prove that any differences are of practical importance in relation to terms and conditions of employment, that person is to be regarded as employed on ‘like work’.


What is ‘work rated as equivalent’?• According to section 1(5) EPA 1970, a

person’s work will only be regarded as rated as equivalent to that of a person of the opposite sex if it has been given equal value under a properly conducted job evaluation scheme, including the allocation to a grade or scale at the end of the evaluation process.


• A valid job evaluation exercise will evaluate the job and not the person performing it, and if evaluation studies are to be relied on they must be analytical in the sense of dividing a physical or abstract whole into its constituent parts. It is clearly insufficient if benchmark jobs have been evaluated using a system of job evaluation whereas the jobs of the applicant and comparators have not.



Equal value claimsAn equal-value claim can be pursued so long as the applicant’s comparator is not engaged on like work or work rated as equivalent.

chapter 6 discrimination on the grounds of sex, sexual orientation, race, religion or belief

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