20 July 2009

Employment news - summer: Is multiple choice the answer?


Meriel Schindler
Partner | UK

The Equality Bill could be on the statute books by October 2010 (subject to the usual hurdles of approval by both the Houses, Royal Assent and the slightly unknown quantity of a General Election). One of its self-described aims is to strengthen the law to support progress on equality, but what practical measures will it introduce to do this? One big step is the potential introduction of discrimination claims based on a combination of protected characteristics ie ‘multiple discrimination' claims, which in effect, would increase the grounds for bringing a discrimination claim. 

Currently, a claimant can only claim discrimination on a single ground (for example, age or sex), albeit s/he can bring more than one claim at once. This means an Employment Tribunal hearing a direct discrimination claim must consider the grounds of, for example, age and sex separately, and may not make a global finding that the claimant was treated less favourably because, for example, she was an older woman. Similarly, in an indirect discrimination case, an Employment Tribunal may not consider the impact of a provision, criterion or practice on a group sharing more than one protected characteristic, for example, Muslim women as a group, compared to everyone else.  It must consider separately the impact on women as a group (whether Muslim or not), and the impact on Muslims as a group (of both sexes).

This means that although discrimination law casts the net widely (with protection from discrimination for any one of several characteristics), its mesh has some significant holes in it, and discrimination on a combination of grounds has often been ‘the one that got away'. For example, an older woman who suffers less favourable treatment because of these two characteristics together, but neither individually, loses out because her employer can point to a younger woman and a man her age, whom it does not treat unfavourably. Legislation on ‘multiple discrimination' claims seeks to close these gaps. 

The Equality Bill as drafted does not refer to multiple discrimination claims.  However, the Government's proposals on the issue (which have been the subject of recent consultation) include the following: 

  • Multiple discrimination claims would only be able to be brought in relation to a combination of two protected characteristics. Pregnancy and maternity and marriage and civil partnerships are excluded, as the Government considers that appropriate remedies already exist under a single strand claim.
  • The same test for direct discrimination would apply as for single strand direct discrimination claims ie the claimant must be able to demonstrate that less favourable treatment occurred because of the combination of characteristics alleged (reflecting the wording in the Equality Bill which is to replace existing wording that the treatment was on the grounds of a protected characteristic). 
  • There is no need for a claim in relation to each characteristic included in the combination to be successful if brought separately although single strand claims on the same grounds would be allowed to be brought alongside a claim of multiple discrimination. 
  • The comparator would be someone who did not have either of the protected characteristics. 
  • In terms of compensation, there would be no double recovery: the award would reflect the actual loss and injury to feelings as a result of the less favourable treatment as a whole, not the sum of two single strand claims. 

So, what will be the likely effect of introducing multiple discrimination claims? Will it be: (a) providing greater protection for claimants through recognising the subtlety of situations which current legislation is unequipped to recognise; (b) encouraging a scattergun approach by claimants, leading to increasing claims and more work for respondents; © both of the above. At this stage, it is not obvious what the outcome will be, but in keeping with that old multiple choice adage, if in doubt, guess ©.

Meriel Schindler Partner | London

Category: Article