Introduction
Branded "the death of the office joke" by the Daily Mail, the Equality Act 2010 (the "Act") was implemented on 1 October 2010 to consolidate into one Act previous discrimination legislation and enshrine additional principles regarding discriminatory behaviour that have developed through case law. The Act addresses discrimination on the grounds of the following 9 "protected characteristics":
- Age;
- Disability;
- Gender reassignment;
- Marriage and civil partnership;
- Pregnancy and maternity;
- Race;
- Religion or belief;
- Sex; and
- Sexual orientation.
The Act renders it unlawful to discriminate against an individual on the basis of a protected characteristic in relation to several areas, including employment and the provision of goods and services. As many charities focus their operations on a specific group of people (for example, the elderly or disabled) and there is no limit on the amount of compensation that can be awarded in discrimination claims brought in the Employment Tribunal, it is essential that charities operate in compliance with the Act.
Charities can benefit from an exemption which permits them to limit those who benefit from their operation on the grounds of a protected characteristic. However, an individual's human rights are important and therefore any discriminatory infringement must be both justified and proportionate.
Pre-employment health questions
Pre-employment health enquiries are thought to be one of the main reasons that many disabled job applicants often fail to reach the interview stage. It is now unlawful to ask job applicants about their health before they have been offered a position, unless one of the exceptions in the Act applies. These exceptions include circumstances where the questions are necessary to establish whether the applicant is able to "carry out a function that is intrinsic to the work concerned". Employers should consider carefully whether any such questions are necessary (for example, where a job involves the manual lifting and handling of heavy items) and should certainly refrain from enquiring about a job applicant's sickness absence record.
Types of discrimination
Indirect discrimination
Indirect discrimination occurs where a provision, criterion or practice ("PCP") is not intended to treat anyone less favourably but nevertheless has the effect of putting people with a protected characteristic at a disadvantage. An employer can objectively justify the PCP, provided that it is a proportionate means of achieving a legitimate aim. The definition of indirect discrimination has been harmonised by the Act and its scope extended to cover all protected characteristics except pregnancy and maternity.
Association and perception
Prior to the Act, legislation was inconsistent in prohibiting discrimination because of a perceived protected characteristic or because an individual is associated with someone with a protected characteristic. An example of perceptive discrimination would be treating an individual less favourably on the basis that they appear to be homosexual when, in fact, they are heterosexual. Associative discrimination would occur, for example, where an individual is treated less favourably because their spouse, or child, is disabled. Associative and perceptive discrimination now apply to all protected characteristics except marriage and civil partnership.
Protected characteristics
Age
Age is a protected characteristic which has been placed in the spotlight by BBC presenter Miriam O'Reilly, who won her age discrimination claim after being warned to be "careful with those wrinkles when high definition comes in". As of 5 April 2011, the default retirement age of 65 will be abolished and retirement will no longer be a potentially fair reason to dismiss an employee. Guidance from both the Government and Acas is due to be published to assist employers in dealing with retirement and age-related issues going forward.
Sex discrimination
Sex discrimination has received renewed press coverage recently following the dismissal of Sky Sports commentator Andy Gray over comments he made regarding the professional competencies of a female assistant referee. Equal treatment of the sexes is a basic concept of human rights law and differential treatment should only be borne out of necessity on the basis of biological differences.
Religion or belief
It is unlawful to discriminate against an individual because of their religion or belief (or indeed their lack of any such belief), unless the treatment can fall within one of the exceptions under the Act. These exceptions include: an occupational requirement having regard to the nature or context of the work; where employment is for the purposes of an organised religion; and for employers with a faith-based ethos. Case law suggests that it can be difficult to justify discrimination on the grounds of this protected characteristic.
The scope of this protected characteristic is not limited to religious beliefs but also extends to "philosophical beliefs". For example, the case of Grainger plc and others v Nicholson has confirmed that a belief in climate change is potentially capable of amounting to a philosophical belief. This case also confirms that a "belief" must be worthy of respect in a democratic society and must not be incompatible with human dignity or conflict with the fundamental rights of others; a belief that a particular racial group is racially superior, for example, would not be afforded protection by the Act
Sexual orientation
Under the Act, individuals are afforded protection from discrimination on the grounds of their sexual orientation, whether they are heterosexual, homosexual or bisexual. A recent Bristol County Court decision (one of the first cases to be decided under the Equality Act (Sexual Orientation) Regulations 2007) held that a hotel had discriminated against gay civil partners on the grounds of their sexual orientation. The hotel owners would only let double rooms to married heterosexual couples based on their belief that sex outside of marriage is sinful. As this case and the case detailed below highlight, sexual orientation is a protected characteristic which can prove particularly problematic for religious charities or organisations.
Charities Exemption
Under the Act, charities are still able to limit the group of people who benefit from their operations to individuals with a protected characteristic, provided that to do so would either:
- Help to tackle disadvantages that particularly affect a group with a protected characteristic; or
- Be objectively justified as a proportionate means of achieving a legitimate aim. A recent Court decision has established that this means the charity's aim must be justified by "particularly convincing and weighty reasons".
In an ongoing case, the Charity Commission rejected an application made by Catholic Care (Diocese of Leeds) to amend its objects to limit the provision of its adoption service to prospective parents who are heterosexual. Catholic Care argued that the proposed change was necessary because its adoption service received donations from the Catholic Church, without which the service would have to close. The Commission determined that respect for the religious beliefs motivating the charity's application and the public nature of its work did not justify differential treatment in favour of heterosexual parents, even if the adoption service had to close as a result. The charity's trustees have recently been denied the right to appeal to the Upper Tribunal which would have been the eighth stage of the case and their protracted fight illustrates that justifying a charity's discriminatory objects as a proportionate means of achieving a legitimate aim will not always be easy.
Eligibility for protection against discrimination
Individuals in employment are protected from all discrimination relating to any protected characteristic. Charles Russell LLP has recently been involved in a case which further supports the established position that the scope of protection afforded by discrimination legislation does not extend to volunteers. The Claimant in X v Mid Sussex Citizens Advice Bureau argued that she was following an "occupation" and that volunteers "in occupation" should be covered by European Union discrimination legislation.
Many charities and organisations may be relieved by the Court of Appeal's decision, as the prospect of being held liable for discriminating against a volunteer could be a significant financial burden, particularly given the number of volunteers engaged by charities. However, charities should (and, generally, do) recognise the wider social benefit of treating volunteers respectfully and many already choose to ensure anti-discrimination policies and procedures are in place in respect of volunteers, irrespective of whether they are legally obliged to do so.
Mrs X is in the process of appealing the Court's decision but, for the time being at least, volunteers do not have legally enforceable discrimination rights.
Conclusion
Charities, like any other employer, must take great care to ensure they do not act unlawfully in discriminating against individuals with a protected characteristic. Where there is any doubt, they should seek timely advice, as the consequences of getting it wrong can be costly
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.