Equality and Freedom from Discrimination

Objectives
To explore ways in which the law respects and attempts to defend individual freedoms by offering protection against the different forms of

discrimination that exist in society.

1. Examine the historic legal position in relation to discrimination;
2. Consider the need for reform of the law relating to discrimination.
3. Consider the protection offered by the law which is now incorporated into the Equality Act 2010.

4. Examine the protection offered by the law in terms of

• WHICH GROUPS IN SOCIETY are protected from discrimination,
and
• IN WHAT SITUATIONS people are protected from discrimination

5. Explore the DIFFERENT TYPES of discrimination that exist.
• Direct Discrimination;
• Indirect Discrimination;
• Harassment;
• Victimisation

6. Consider tackling discrimination through positive action.
Exam Skills

• Describe/Explain the law in relation to discrimination.
• Evaluate the law in relation to discrimination.
Introduction

Explain what discrimination means.
Give an example of discrimination taking place in society. Think about what types of discrimination exist in society.
The Historical Legal Position in the UK

Common Law and Discrimination

At common law, there were no restrictions against discrimination.

What did this mean?
The need for protection from discrimination stems from the basic freedom of law, that a person may do anything not prohibited by the law. So

whilst the law itself did not discriminate, by not specifically preventing discrimination on any ground, it allowed people in society to

discriminate at will.

Statute Law and Discrimination

In the 1960s it was recognised that there was a growing need to use the law to prevent certain forms of discrimination. Initially the law

focused on preventing race and sex discrimination.

Why were race and sex discrimination chosen as the first types of discrimination to be outlawed?

How did the law help prevent race and sex discrimination?

However, more recently the law has begun to respond to other forms of discrimination (partly due to increased pressure from the European

Union). The law now prevents against other types of discrimination such as disability, sexual orientation and trans-gender discrimination,

religious discrimination and age discrimination.

Act
Race Relations Acts 1965, 1968, 1975, Race Relations (Amendment) Act 2000

Equal Pay Act 1970

Sex Discrimination Act 1975

Disability Discrimination Acts 1995, 2004

Employment Equality (Religion or Belief) Regulations 2003
Explain how statutory protection is an improvement on the common law position?
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There were a number of other anti-discrimination laws in addition to those listed above such as the Employment Equality (Sexual Orientation)

Regulations, the Equality Act 2006, the Sexual Orientation (Goods and Services) Regulations and the Employment Equality (Age) Regulations 2006.

In 2009, the Labour Government announced that the law on discrimination had grown to a point where it was confusing and difficult to

understand. There were 9 major statutes outlawing discrimination, around 100 statutory instruments [S.I.s] and over 2,500 pages of statutory

guidance. [Rule of Law – clear and accessible?]

In the Equality Bill 2009, the government proposed a new law which would streamline the existing law on discrimination and which would place

all the discrimination protection in one statute. The Equality Bill 2009 passed through parliament and became the Equality Act in April 2010.

The Act came into force in October 2010.

The Equality Act 2010
The main provisions of the Equality Act 2010 are as follows:

• To replace the large number of Acts with one single Act governing discrimination.
• To simplify the law on discrimination.
• Place a new equality duty on public bodies
• To ban age discrimination outside the workplace
• Deal with the problem of unequal pay
• Protect carers from discrimination
• To protect breastfeeding mothers from discrimination
• Strengthen protection for disabled people.
Issue 1: Protected characteristics: WHO needs to be protected by the law?
The law has responded to discrimination in society and is designed to protect vulnerable groups. However, you need to fall within one of these

vulnerable groups to claim protection.

The Equality Act lists 9 special characteristics that the law will protect and defines these as PROTECTED CHARACTERISTICS. Some of these

characteristics were protected before the Equality Act, others were not. The table should make it clear.
Protected Characteristic Protected BEFORE the Equality Act?
Age

Yes – but the protection for age discrimination will eventually extend to situations outside employment.
Disability

Yes – but the protection has been improved to include carers of disabled people.
Gender Re-assignment

Yes – but this was included in sex discrimination.
Race

Yes – but increased protection now in place.
Religion or Belief
Yes, since 2003.
Sex

Yes but increased protection which also includes specifically breastfeeding mothers.
Sexual Orientation
Yes but increased protection.
Marriage and Civil Partnership

Yes but previously under the ground of sex discrimination. Is now a ground in its own right and has increased protection
Pregnancy and Maternity

Was covered under sex discrimination but is now a ground in its own right.

The law protects these characteristics but what do they actually mean? To work this out we need to look at definitions provided in statute.

Case law has provided further definition in some instances.

A positive feature of discrimination law is that it is willing to protect a range of vulnerable people from discrimination through wide

definitions within the statute and wide interpretations within the court room.

• Discrimination on the grounds of RACE
The law offers protection to those discriminated on the grounds of their Race. However, before you can claim the protection of the law, you

must first establish that you belong to a recognised race. This is not always a straightforward issue.

Race Relations Act 1976 Equality Act 2010
s.3 defined race as meaning : ‘colour, nationality, ethnic and national origins’ s.9 states race includes ‘colour, nationality, ethnic

or national origins.’

The inclusion of the phrase ‘ethnic origin’ widens the meaning of racial group and has allowed religious groups to be included even though

religion was not part of the remit of this Act.

Mandla v Dowell Lee 1983
The House of Lords had to consider whether Sikhs were a racial group. They held that an ethnic group is a group which has a long shared

history and a cultural tradition of its own, often, but not necessarily, associated with religious observances. Therefore, Sikhs were a racial

group. However, this does not mean all religious groups will be included. Asians are a recognised Race whereas Muslims are not a recognised

race but a religion.

To be classed as a RACE, there appear to be two elements that must be proved:
1. a long shared history of which the group were conscious; AND
2. a cultural tradition of its own including family and social customs.

READ ALSO : Module 11 Discussion

Other factors that could also be taken into account but were not essential include:
• a common geographical origin;
• a common language; literature and religion
(Dawkins v Department of Environment 1993)

In CRE v Dutton 1989 it was decided that gypsies could be termed a racial group because they had a shared history going back 700 years.

However, in Dawkins v Department of Environment 1993, Rastafarians, although they exhibited a cultural tradition of their own e.g. music taste

and distinctive hair, they did not have a long shared history. Their history only dated back about 60 years.

Does the law adequately protect you from discrimination on the grounds of RACE? Think about whether the protection has been improved because

of the Equality Act 2010.
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• Discrimination on the grounds of DISABILITY
In order to claim disability discrimination you must be suffering a recognised disability (in the same way as you must be part of a ‘racial

group.’).

Disability Discrimination Act 2004 Equality Act 2010
s. 1 states a disability is ‘a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out

normal day to day activities.’
s.6 states a person has a disability if
a) they have a physical or mental impairment, AND
b) the impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities.

The Employment Appeal Tribunal (EAT) had the opportunity to consider the meaning of ‘disability’ in Goodwin v The Patent Office (1998).

1. The impairment condition
Deciding whether there is an actual impairment is quite straightforward where that impairment is a physical one. However, there used to be a

doubt about whether the impairment condition is fulfilled in an alleged mental illness case. Tribunals used to have to check whether the

condition was referred to in the WHO International Classification of Diseases. If it wasn’t then impairment could not be claimed. However,

this is no longer the case following the Equality Act 2010 which broadens the definition to recognise mental impairment not within the WHO

classification e.g. stresses and anxiety.
2. The adverse effect condition
The EAT warned that disabled persons often ‘play down’ the effect that their disabilities have on their daily lives. Thus, if asked whether

they were able to cope at home the answer might well be ‘yes’ even though, on proper analysis, many of the ordinary day to day tasks were done

with great difficulty due to an impaired ability to carry them out.

3. The substantial condition.
Minor impairments should be considered together in determining whether they had a substantial adverse effect on the person’s ability to carry

out day to day activities. A progressive condition which has begun to have an effect on the person’s health is deemed to have a substantial

effect if it is likely to have such an effect in the future.

4. The long term effect condition
An adverse effect is long term if it has or will last longer than twelve months, or for the rest of the person’s life. Schedule 1 states that

a ‘long term effect’ is one which has lasted, or is likely to last, twelve months or more.
Example
You suffer from depression so it is very hard for you to make decisions or even to get up in the morning. You’re forgetful and you cannot plan

ahead. Together these factors make it difficult for you to carry out day to day activities. You’ve had several periods of depression over the

last 2 years and the effects of the depression are long term. So for the purposes of the Equality Act you’re defined as a disabled person.

Before the Equality Act you might not have been able to get disability discrimination protection.

Employers are also no longer allowed to ask questions about your health or disability before they offer you a job i.e. at interview. They can

only do this if they have a good reason for doing so… e.g. health and safety, you apply for a job as a tightrope walker but you are blind.
• Discrimination on the Grounds of RELIGION

Employment Equality (Religion or Belief) Regulations 2003 Equality Act 2010
Defines religion or belief as
‘Any religion, religious belief or similar philosophical belief. This does not include any philosophical or political belief unless it is

similar to religious belief. It is for the Employment Tribunals and other Courts to decide whether particular circumstances are covered by the

regulations.’ s.10 states ‘religion means any religion or lack of religion.’
‘Belief means any religious or philopophical belief and also a lack of belief.’

This is a relatively recent addition to the law of discrimination. Why has religion not always been protected?
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• Discrimination on the grounds of PREGNANCY or MATERNITY.

Sex Discrimination Act 1975 Equality Act 2010
No definition in law – was included as part of the protection afforded to women under sex discrimination. A woman is protected against

discrimination on the grounds of pregnancy during the period of her pregnancy and on the grounds of maternity during any statutory maternity

leave to which she is entitled. Pregnancy is the condition of being pregnant. Maternity is the period 26 weeks after the birth.

• Discrimination on the grounds of SEX.

Sex Discrimination Act 1975 Equality Act 2010
Discrimination on the grounds of sex is discrimination because one is a man or a woman. s.11 ‘a reference to a person who has a particular

protected characteristic is a reference to a man or a woman.
Issue 2: WHEN will the law protect you?
There are a variety of discrimination laws but they only offer protection in defined situations. If the discrimination occurs outside these

situations then you cannot bring an action. A number of characteristics were only protected in narrow circumstances such as employment … but

the Equality Act has improved protection for most grounds.

Religion or belief regulations provided the weakest protection which was only available in terms of employment and vocational training. Age

discrimination is only outlawed in employment.

The new Equality Act has attempted to extend protection for all characteristics. The law provides the vulnerable protection in a variety of

situations although some aspects are still limited.
Broadest Protection Protected Characteristic Where protected previously?
1. Race • Employment
• Education
• Housing
• Premises
• Public functions
• Provision of goods and services
• Clubs
2. Disability • Employment;
• Education;
• Transport;
• Provisions of Goods and Services.
• Public functions
• Housing
• Clubs
3. Sex • Employment
• Education
• Provisions of Goods and Services
• Public functions
• Clubs
4. Maternity/pregnancy • Employment
• Education
• Provisions of Goods and Services and public functions
• premises
• Clubs
4. Religion/belief • Employment and vocational training
• Premises
• Education
• Provision of Goods, Facilities and Services and public functions
• Clubs
5. Sexual orientation • Employment and vocational training
• Education
• Provision of Goods and Services and public functions
• Clubs
5. Gender re-assignment • Employment and vocational training
• Education
• Public function
• Clubs
6. Marriage and civil partnership • Employment
• Vocational training
• clubs
7. Age • Employment
• Vocational training
• Protection outside the workplace on the grounds of age is likely to come into force in 2012.
In Farah v Commissioner of Police of the Metropolis (1996) ‘services’ included those provided by the police. Farah was a seventeen year old