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  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.