DISCRIMINATION LAW TO EQUALITY LAW
Introduction
Lord Davey in Allen v Flood [1898] AC 1, 172, said that ‘an employer may refuse to employ a [workman] for the most mistaken, capricious, malicious or morally reprehensible motives that can be conceived, but the workman has no right of action against him.’ The gendered language is significant. This law applied not just to refusals to engage workers but, for example, to dismissals of women who married, and to paying women less than men, even when they were performing the same job (see Lord Atkinson in Roberts v Hopwood [1925] AC 578, 596, describing the East End of London borough of Poplar Council’s policy of equal for the same work as ‘misguided principles of socialistic philanthropy’: the popular vote was held not to prevail over the financial interest of council ratepayers). Until the 1970s equal pay between the sexes was except for teachers rare. There were exceptions to the principle of non-intervention: the Musicians’ Union successfully defended a boycott of colour bars in dancehalls (Scala Ballroom (Wolverhampton) Ltd v Ratcliffe [1958] 1 WLR 1057, CA) but that was in the context of a tortious claim of conspiracy against the Union at a time when the courts were loath to intervene in industrial disputes. Women had broken into the Jockey Club: Nagle v Feilden [1966] 2 QB 633, CA, even if Lord Denning MR’s reasoning that female racehorse trainers had a ‘right to work’ was dubious, to say the least. The Disabled Persons (Employment) Act 1944, a statute aimed at the reintegration of severely injured military personnel into the labour force, provided for a 3% quota for disabled workers but the Act seems never to have been enforced; indeed, enforcement was in the hands of the Secretary of State for Employment (now Business, Innovation and Skills) and was by means of criminal proceedings, a method of enforcement not in the modern armoury or ‘toolkit’ as it is called of the regulation of the employment relationship.
Fifty years ago it could be easily said that there was only scanty anti-discrimination law in employment. The position outside of employment law was worse: if the law was fragmentary in employment law, outside it was negligible. Women were allowed to sit in Parliament (Sex Disqualification (Removal) Act 1919) but, for example, the old universities were split on gender lines.
This note seeks to outline the develop of the law of discrimination in the next section and towards the end demonstrate how the Equality bill will to some degree switch the focus from individual enforcement by workers to preventive action by employers.
Discrimination law developments
(a) Equal pay
It is debatable whether equal pay between men and women falls within the concept of discrimination law (for example, the 1,300 page tome by N. Bamforth, M. Malik, and C. O’Cinneide, Discrimination Law: Theory and Context, Thomson, 1st ed., 2008, does not cover equal pay. Cf. the standard student text, I. Smith & G.H. Thomas, Smith & Wood’s Employment Law, OUP, 9th ed., 2008, where equal pay law is situated in the middle of a chapter on discrimination). Certainly the omission in Bamforth et al. may be justified by the fact that the other laws on discrimination noted below largely follow a certain pattern and equal pay does not, but there are contrary indications e.g. equal pay and sex discrimination laws were meant to be read as a unified whole; discrimination law has influenced equal pay law in both the width of the defence of ‘genuine material difference’ (see s. 1(3) of the Equal Pay Act) and the development of the idea of indirectly discriminatory payment systems; and while equal pay as between men and women and sex discrimination fall under different UK statutes, pay unequal on racial grounds and race discrimination come under the same statute, the Race Relations Act 1976. The Equal Pay Act 1970 was very much a statute uninfluenced by external sources. Unlike later laws it was not based on EC or US law: indeed, in 1970 the UK was not an EC member state. Its impetus derived from Mrs Barbara Castle, Secretary of State for Employment and Productivity in the second Wilson government, and female seat-cover machinists at Ford who went on strike for equal pay with men. However, after the UK acceded to the EC in 1973 there already was an article in the Treaty of Rome 1957, Art. 119, now Art. 141, which was in the usual fashion of EC law directly binding on both emanations of the State and private employers. Very much contrary to the wishes of the then Prime Minister the government was obliged to amend the 1970 statute because it did not conform to EC law: originally there were two routes to equal pay, work where the man and woman did ‘like work’ (i.e. work which was the same or work where any differences were not significant) and where a voluntarily undertaken job evaluation study had equally ranked the man’s and the woman’s work. What the ECJ found to be missing in EC Commission v UK [1983] ECR 3431 was a compulsory method of job evaluation and UK law had to incorporate the third method of acquiring equal pay, work of equal value: Equal Pay (Amendment) Regulations 1983, SI 1983/1794. The equality bill does not amend the main law of equal pay e.g. there remains the necessity of an actual comparator; unlike in the discrimination law noted below the tribunal may not construct an hypothetical comparator.
(b) Sex discrimination
Sex discrimination law derives from the Sex Discrimination Act 1975 (SDA), which was the first statute to lay down the template for the discrimination statutes which followed. The Act was very much based on US law, and there would have been no indirect discrimination (see below), had the then Home Secretary, Roy Jenkins, not been convinced to extend the law by his advisor, the now Lord Lester, who had been persuaded by US commentators that a restriction to direct discrimination would not push through the anti-discriminatory purpose of the legislation. Though there have been substantial amendments since especially to bring the law into line with EC law (e.g. in respect to the definition of indirect discrimination and the burden of proof), the standard approach is that liability may be imposed in four ways: direct discrimination (called ‘disparate treatment’ in the USA), indirect discrimination (called ‘disparate impact’ in the USA), victimisation and harassment. In respect of race discrimination only segregation is also a form of discrimination. In the context of the SDA direct discrimination is treating a member of the protected group, normally women, less favourably than one does or would treat a member of the comparable group, here men. The phrase in italics signifies that no actual comparable male needs to have been treated more favourably than the female claimant: it is sufficient that a man would have been treated better. It is therefore sufficient for there to be a hypothetical male comparator. Compare equal pay law, where there must be an actual comparator of the opposite sex, a matter of some difficulty when jobs are occupationally segregated. It should be noted that generally there is no defence of a direct discrimination claim, the exception being age discrimination. In respect of indirect sexual discrimination, the definition has widened across the years because of the effect of EC law and the employers’ defence of justification has, if anything, been narrowed, and it is worth quoting the third redaction of indirect discrimination because it provides the pattern for the other grounds of discrimination noted below. Section 1(2) of the SDA now reads in relation to employment law claims:
‘… a person discriminates against a woman if --
(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –
(i) which puts or would put women at a particular disadvantage when compared to men,
(ii) which puts her at that disadvantage, and
(iii) which he cannot show to be a proportionate means of achieving that aim.’
At the time of writing there is no law of indirect disability discrimination but there is what may be called the functional equivalent of reasonable accommodation, a concept again very much in the US mould. The Equality bill does create a law of indirect disability discrimination.
Victimisation means again treating a person less favourably than the defendants do treat or would treat another but on the basis that the person has brought a discrimination claim. For the amendment made by the Equality bill, see below. Harassment originally was not a separate claim but facts constituting harassment had to be made to fit the framework of direct discrimination: see Porcelli v Strathclyde Regional Council [1986] ICR 564, CS, and cf. Pearce v Governing Body of Mayfield Secondary School [2003] UKHL 34. A new definition of sexual harassment came into force shortly after Pearce and again the terms of the statute, s. 4A(1) of the SDA, are worth quoting because they form the template for other forms of harassment found in the discrimination statute:
‘… a person subjects a woman to harassment if –
(a) he engages in unwanted conduct that is related to her sex or that of another person and has the purpose or effect –
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,
(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect –
(i) of violating her dignity, or
(ii) of creating an intimidating hostile, degrading, humiliating or offensive environment for her, or
(c) on the ground of her rejection or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.’
Not surprisingly, this definition uses the exact words of the Equal Treatment Amendment Directive 2002/73 but in fact widens the scope of the Directive by making ‘purpose’ and ‘effect’ alternative and not cumulative, as the Directive states.
The phrase ‘sex discrimination’ is both wider than it may appear at first sight. It covers discrimination against married persons and those in a civil partnership, but not single persons (s. 3 as amended by the Civil Partnerships Act 2004, s. 251): see Bick v Royal West of England School for the Deaf [1976] IRLR 326, IT: not illegal to discriminate against a single person (who was about to get married). It should be noted that the Equal Treatment Directive 76/207, now consolidated into the Equal Treatment Amendment Directive, extends to discrimination on grounds of family status, a wider concept than marriage and civil partnership, but the ECJ has not had occasion to determine its width. The 1975 statute extends to discrimination on the grounds of gender reassignment; see P v S [1996] ECR 1-2143, which led to the Sex Discrimination (Gender Reassignment) Regulations 1999 SI 1999/1102, which in turn inserted s. 2A into the SDA. However, and famously, the Act does not cover sexual orientation discrimination (see especially Grant v South-West Trains Ltd [1998] ICR 449, ECJ). Change in the law has to await EC legislation, on which see the Employment Equality (Sexual Orientation) Regulations 2003 SI 2003/1661, below.
Besides the standard definitions of direct and indirect discrimination, victimisation and harassment, the SDA as amended also contains the standard template for e.g. vicarious liability (see Tower Boot Co Ltd v Jones [1997] ICR 254, where the Court of Appeal broke free from the tortious definition, widening it to encompass, for example, job-related discrimination out of work time and off work premises) and the burden of proof (see the Burden of Proof Directive 97/80 and s. 63A of the SDA, as interpreted particularly in Igen Ltd v Wong [2005] ICR 931, CA). There is also a list of exceptions and what are called ‘genuine occupational requirements’, previously ‘genuine occupational qualifications’, such as for physiology such as modelling bikinis. Again, the influence of US law is strong: in the States there are exceptions called ‘bona fide occupational qualifications’. However, since 1975 the principal influence has been EC law and some illustrations of that influence have already been mentioned such as the increased width of the definition of indirect discrimination, but perhaps the greatest extension of UK law through the EC was the abolition of the maximum limit on compensation, which used to be tied to the financial cap to the compensatory award in unfair dismissal, a maximum which still applies. The ECJ disapplied the limit in Marshall v Southampton and South West Hampshire AHA (no. 2) [1993] ECR I-4367 on the normal EC law basis that the award after the maximum was applied was not sufficiently dissuasive of sexual discrimination.
Both equal pay and sex discrimination law at the EC level have been consolidated into Directive 2006/54.
(c) Race discrimination
The mention of EC law reminds us that like the SDA the Race Relations Act 1976 (RRA) was not drafted to comply with EC law but it was very much drafted to be consistent with the SDA, which as we have seen was founded upon US law. While there were differences between the RRA and the SDA (e.g. there could be separate lavatory accommodation for men and women but not for blacks and whites), the basic rule was that the two statutes were meant to interpreted jointly: a definition in one statute was to be read as applying to the other one, and, for example, the Tower Boot case mentioned above in the context of the SDA was in fact a RRA authority. While the Directive dealing with sex discrimination existed since 1976, shortly after the SDA, the EC had no competence in race discrimination until the Treaty of Amsterdam 1997, which led to the Directive 2000/43, often called the ‘Race Directive’. This Directive bears the influence of the UK experience. Once major problem is that the Directive affects only part of the area covered by UK RRA: race itself and ethnic and national origins fall within the Directive but colour and nationality do not because the RRA was amended by a statutory instrument based on the European Communities Act 1972 and not on primary legislation, and the Directive does not apply to colour and nationality. The effect is that colour and nationality remain unaffected by the amendments to the Act made as a result of the Directive. The result is that there are, for example, two definitions of indirect discrimination, one, the original one, applying to to colour and nationality, and one, the revised version, applying to the other racial grounds; but there is seemingly incorrect law stating that the burden of proof switches in the same way in respect of both race, and national and ethnic origins on the one hand and colour and nationality on the other. For amendments in the bill see below.