Equality Act 2010: Combined Discrimination

Moira and her twin brother Muir apply for jobs as newsreaders. They have both just turned 40. Muir gets a job but Moira is told that whilst the corporation are perfectly happy to employ female newsreaders, they don’t employ women in their forties. Muir’s new colleague is Kirsty – a perky 25 year old.

What would Moira’s prospects of success have been had she brought a sex discrimination claim? Obviously one would not want to be too bullish (for the sake of one’s insurer’s peace of mind) so let’s go with a conservative 99.9%. Using her twin as a comparator she is able to demonstrate that the only material difference between them is that he is a man and she is a woman. Put another way, everything else being equal, had she been a man she would have got the job.

The corporation protests: “If she had been 25 she would have been appointed, so you could equally say that the reason she did not get the job was her age”. That is true. However, and this is the key point, the fact that it is true that she would have been appointed were she younger does not stop it also being true that she would have been appointed had she been a man. Moira could equally bring a claim for age discrimination, using Kirsty as a comparator and her prospects of success would be, again, very good.

Those who drafted the Equality Act 2010 apparently take a different view. Their understanding seems to be that Moira would be bound to fail in her claims. Their perspective is that Moira is the victim of an act of “combined discrimination”. Her sex discrimination claim, for example, would fail because the reason she doesn’t get the job is not her sex but a combination of her sex and her age. That this must be their view is to be inferred from their creation of a prohibition on dual discrimination at EA 2010, s. 14 which provides:

“A person (A) discriminates against another (B) if, because of a combination of two relevant protected charateristic, A treats B less favourably than A treats or would treat a person who does not share either of those characteristics”

The only conceivable reason for enacting this protection would be if the Govt does not believe that someone in Moira’s position would be otherwise protected. I have to say that I have yet to come across a representative brave enough to say to a tribunal: “The Claimant’s sex discrimination claim must fail since we also discriminated against her on grounds of her age. Can we go now?” The extraordinary consequence of combining the Government’s reasoning with the fact that the section only allows you to claim where two relevant protected characteristics are engaged is that if Moira were black, the corporation would be able to tell her that they don’t employ older black women with complete impunity. It creates a perverse incentive to really spread one’s wings and discriminate more broadly.

The flaw in the Government’s reasoning is that it appears to assume that in order for less favourable treatment to be “because of” a protected characteristic, it has to be the sole or principal cause of the treatment. However, caselaw has long since steered us to a position where it is accepted that the protected characteristic needs only to be a “part of the reasons for the treatment in question” (Barton v Investec Henderson Crossthwaite Securities Ltd [2003] ICR 1205 EAT). Was Moira’s gender part of the reason she was not appointed? The answer must be yes.

Looking at the Equality Unit’s website combined discrimination has snuck onto the list of things the Government wants to think about. This is an encouraging prospect. Perhaps this unnecessary measure will now not see the light of day.

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3 thoughts on “Equality Act 2010: Combined Discrimination”

  1. Thank goodness I’m not alone. Clearly section 14 is well-meant but it is utterly misguided. I fail to see how less favourable treatment can be because of “a combination of” sex and age, without it being because of sex and because of age. Put simply, sex discrimination works like this: if sex has played a part in the decision-making process, it is “because of” sex. As you say, you don’t need to show it is “only” or even “mainly” because of sex. Likewise age. If neither sex nor age have played a part in the decision-making process, I can’t see how anyone can sensibly argue that it is a combination of the two.

    People seem to have got it into their heads that Law Society v Bahl has somehow made section 14 essential. (Bahl may have caused difficulties but they certainly haven’t been addressed by section 14.) Even the examples given in the Act’s explanatory notes can be solved much more easily by a simple direct discrimination claim with an appropriate choice of comparator. Therefore, an old woman proves sex discrimination by comparing her treatment with an old man, and proves age discrimination by comparing her treatment with a young woman.

    Choosing a young man as a comparator (as required by section 14) achieves nothing. All it shows is that sex might be a factor, or age might be a factor, or both might be factors, but it doesn’t get anywhere near proving which of those 3 alternatives is right.

  2. I agree (of course). The logic of the s. 14 position is that before Age Discrimination was unlawful, a claimant could not suceed in a straightforward sex claim. On ewould just have said: “this employer applies a condition – being under 40 – to women that he does not apply to men. That is sex discrimination. My client will take cash.”

  3. I don’t know whether you were at Mickey Rubenstein’s ILS talk last night, but a colleague of mine was. Apparently there’s a case coming in the tribunal where some older women dismissed from the BBC’s “Country File” programme are suing for age and sex discrimination under the old law (i.e SDA and Age Regs). It sounds like it could in theory resolve once and for all whether this kind of claim was already covered. The case is O’Reilly v BBC.

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