Dual discrimination

S.14 Equality Act 2010, which would have allowed claims for direct discrimination on two combined grounds, is not being brought into effect. However, even without this it may effectively be possible to bring claims for discrimination on combined grounds.

The Equality Act 2010 section 14 (link to legislation.gov.uk) contained a provision to cover direct discrimination on up to two combined grounds, e.g. disability and gender, or disability and race. Howevever, it was announced in the Plan for Growth (link to hm-treasury.gov.uk) as part of the 2011 Budget that s.14 will not be brought into effect.

The problem (if there is one)

In the absence of s.14, a claim must be that the person has been treated less favourably because of one particular characteristic, for example disability, or race. S.14 aimed to extend this to enable claims for direct discrimination on two combined grounds - so that, for example, a black woman could claim for prejudice or harassment that is not faced by a black man or a white woman (combined race and gender).

In its April 2009 consultation document the Government saw s.14 as targeted at 'intersectional' multiple discrimination ('Assessing the impact of a multiple discrimination provision' (pdf, link to equalities.gov.uk)):

Additive multiple discrimination is already covered by current law, said the Government. It is "when a person is treated less favourably because of more than one protected characteristic and, although the two forms of discrimination happen at the same time, they are not related to each other. For example, a lesbian experiences both homophobia and sexist bullying from her employer during the same incident."
Intersectional multiple discrimination, said the Government, is not always covered by discrimination law at present, and is what the proposed measure aims to address. It is "when the discrimination involves more than one protected characteristic and it is the unique combination of characteristics that results in discrimination, in such a way t

Examples of 'intersectional' multiple discrimination given in the consultation document include:

if a driving school considers a job is not appropriate for an older woman, because it thinks an older woman would not have the strength and agility to grab the steering wheel or brake quickly, but the school would have appointed an older man or a younger woman; or
if a bus driver does not allow a Muslim man onto a bus because he is stereotyped as a 'potential terrorist'.

Claiming even under existing law?

Without s.14, one must be able to sustain a claim that there was discrimination on one individual ground. Even so, it may be possible in effect to claim for intersectional discrimination on two or even more combined grounds.

In the well publicised case brought by presenter Miriam O'Reilly against the BBC (January 2011, Case no.2200423/10), decided without the aid of s.14, the employment tribunal rejected an argument by the employer that it would not be unlawful to have a criterion that women over 40 could not apply for a job (combined gender and age). The tribunal said: "The prescribed reason need not be the sole reason, or even the principal reason, why a person suffers detrimental treatment. Part of the reason that a woman over 40 is precluded from applying for the job, in the above example, is the fact that she is a woman. Another part of the reason is that she is over 40. Both of them are significant elements of the reason that she suffers the detriment. In such circumstances, we consider it is clear that the woman is subject to both sex and age discrimination..." Accordingly, there could effectively be a claim for combined discrimination even without s.14.

Also Multiple discrimination (pdf, link to londonlawcentre.org.uk), a - technical - booklet from the Central London Law Centre, suggests ways in which it may be possible to bring a claim even without s.14.

Relevance to stammering?

There is research in the US which found that non-Caucasians (e.g. black, Asian, oriental) believe that stammering plays a more negative role in the workplace than non-Caucasians: Klein & Hood (2004). However, this may well be a case of additive discrimination which would be covered even without the new s.14.

Archive: s.14 Equality Act 2010

It was announced in the Plan for Growth (link to hm-treasury.gov.uk) as part of the 2011 Budget that this provision will not be brought into effect. So s.14, and therefore the following, is not really relevant from a practical point of view.

The Equality Act 2010 section 14 (link to legislation.gov.uk) contains a provision to cover direct discrimination on up to two combined grounds, e.g. disability and gender, or disability and race. The Government considered it too complicated and burdensome to allow claims on three or more different discrimination grounds. (Howevever, this provision is not in force and will not be brought into effect.)

Currently a claim must be that the person has been treated less favourably because of one particular characteristic, for example disability or race. The Government explains: "However, there are situations where people are discriminated against because of a particular combination of characteristics. For example, a black woman may suffer prejudice or harassment that is not faced by a black man or a white woman. We want to allow discrimination claims to be brought on combined multiple grounds." (Framework for a Fairer Future (link to equalities.gov.uk), June 2008)

As well as being limited to two combined grounds, s.14 is limited to direct discrimination. So it does not apply to harassment, nor to indirect discrimination, nor to discrimination arising from disability. However:

In the case of harassment, combined discrimination should often be covered on the basis that the harassment 'relates' to each of the grounds (see HL Hansard, 13 Jan 2010, col 546-7).
It remains to be seen how s.15 of the Act on discrimination arising from disability is interpreted - where A treats B unfavourably "because of something arising in consequence of B's disability.

The Government has confirmed to Parliament that for the purpose of dual discrimination, even if one satisfies the definition of disability by a combination of impairments, that will be treated as the single protected characteristic of disability. (HL Hansard 19/10/09, col WA38-39, and HL Hansard 13/01/10 col 547).

Consultation document, April 2009

The Government launched a consultation on 27th April 2009, alongside the publication of the Equality Bill: 'Assessing the impact of a multiple discrimination provision' (pdf, link to equalities.gov.uk).

The consultation sought views on Government plans to introduce a provision covering multiple discrimination. Key features of the proposal were:

The new provision would be limited to 'direct discrimination'.
No more than two protected characteristics could be combined (examples of 'protected characteristics' are disabilty, sex, race, religion).
Where any other provision makes the less favourable treatment lawful in relation to either of the two characteristics, then the two combined would not be unlawful either. (E.g. employment in the armed forces is exempt from disability discrimination law, so employment in the armed forces will not be covered if one of the characteristics is disability).

Examples from the consultation document of additive multiple discrimination and (which s.14 was aimed at) intersectional multiple discrimination are given above.

Further links:

Multiple discrimination (pdf): detailed booklet from Central London Law Centre.
News article: Equality bill dual discrimination clause agreed (link to Personnel Today, 13/7/09)
Government Equalities Office factsheet (pdf).
House of Commons Committee debate: col 682-686 Public Bill Cttee, 2nd July 2009 (link to UK Parliament website) - and clause actually added but no debate: col 693-694 7th July 2009. Also previous debate on privately drafted clause around col 247, Public Bill Cttee, 16th June 2009 (link to UK Parliament website).
On 13th January 2010, the clause was also debated in the House of Lords Committee. I find particularly interesting the speech of Lord Lester who, from favouring a wider clause, was 'converted' to one limited to two grounds and limited to direct discrimination - HL Hansard 13 Jan, col 542.

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