Cases involving discrimination on the grounds of age, religion and belief or sexual orientation are on the increase. Pam Loch discusses the opinion as to whether some equality rights are more equal than others.
Since 1975 and the introduction of the Sex Discrimination Act, there have been many challenges in tribunals and courts which have clarified the law on discrimination in the UK. Fast forward to 2009 – are we seeing a repeat with age discrimination and discrimination on the grounds of religion or belief, or is there a different emphasis to this extension of rights in the workplace?
How we got here
There is no doubt that there have many cases since 1975 alleging unlawful discrimination on the grounds of sex and race. When the statistics are analysed though, it is evident that the number of challenges on the grounds of discrimination have dramatically increased in the last 10 to 15 years. The introduction of the Disability Discrimination Act in 1995 has no doubt significantly contributed to this acceleration in the number of claims.
In the noughties, we have seen a further move forward in the evolution of discrimination law in the UK with the Equality Directive coming into play. New strands of unlawful discrimination in the UK have been introduced in the form of age, sexual orientation and religion and belief with the rest of the European Member states playing catch up to some extent.
Despite this, discrimination claims still remain the hardest claims to succeed with at employment tribunals. The latest statistics from the employment tribunals office reveal that only 3% of sex discrimination claims succeed at the employment tribunal, with sexual orientation claims faring a little better at 6%. However this doesn’t tell the full story.
Where we are now
What is becoming apparent now is that there has been a significant increase in the number claims alleging discrimination on the grounds of age, religion and belief or sexual orientation. Latest figures show age discrimination claims have tripled and another sharp increase is expected this year with the recession being cited as a major contributory factor.
These new strands of discrimination have continued to attract publicity with different approaches. Sex on the other hand – with the exception of sexual harassment claims – together with race and disability discrimination claims have not been making the headlines in the same way they did in the past. Is that a reflection, though, of how they are perceived in the workplace?
It could be, but one other possible explanation is that the legislation and case law on sex, race and disability discrimination has been developing for much longer. Over the years the primary legislation has been amended to reflect deficiencies highlighted by claims pursued to the highest levels.
The law may have developed to such an extent that if an employer believes they could be found to have discriminated against an employee, they are likely to settle the claim. Defending discrimination claims can be a costly exercise and employers may take a commercial and pragmatic view even if the risk of losing is not significant. Claims that are settled are kept private away from the glare of publicity because the settlement terms are normally subject to a confidentiality agreement.
Misleading impression
However, age, religion and belief and sexual orientation claims continue to attract attention and publicity. This perhaps gives a misleading impression that those rights are perceived to be regarded as more equal than sex, race or disability claims.
Why a misleading impression? Well, many of the cases we read about are decisions made at the employment tribunals and remain open to challenge or another interpretation. Employment tribunals are only bound by decisions made in the Employment Appeal Tribunal (EAT) or the higher courts and therefore another employment tribunal panel may take a different view on another day.
One example of this is the recent employment tribunal decision which held that a belief in climate change could be a belief (Nicholson v Grainger PLC and others). This decision could be overturned by the EAT at a later stage.
Another example is the decision Baker v National Air Traffic Services Limited, where the employment tribunal panel decided that a blanket ban on anyone over the age of 36 years applying to become an air traffic controller was direct age discrimination. Unlike other forms of direct discrimination, age discrimination can be justified. Given the impact of this decision it is likely to be appealed to the EAT.
In view of the publicity and attention given to these types of cases it is understandable why there may be a perception that these new rights are more important at the moment than sex, race and disability discrimination in the workplace.
Certainly the government and the Equality and Human Rights Commission (EHRC) do not agree with the view that sex, race and disability discrimination may rank less equally than the newer strands based on their latest announcements.
The EHRC has announced it’s launching an inquiry into sex discrimination in the financial services sector. As part of this investigation, EHRC will be able to compel companies to provide information on pay, progression and retention. The EHRC’s inquiry is likely to focus attention on the impact of discretionary bonuses and incentives on women.
Likewise the government has published The Equality Bill 2008-2009, making it clear that the aim of the bill is to "harmonise discrimination law" and strengthen it. If there were in fact any inequalities between the various strands, this bill is intended to remove them.
Harmonisation of the law governing discrimination, if it can be achieved, will no doubt help to improve a confusing picture for many employers. However equally important is publishing a message that all forms of discrimination should be viewed in the same way.
Employers can take action now though by having appropriate policies in place and training employees to raise awareness that all forms of discrimination are the same and can be prevented.
Pam Loch is founder of niche employment law firm Loch Associates and managing director of HR Advise Me Ltd.
