Multiple discrimination is where more than one ground is involved, eg both disability and sex. This is not necessarily important for stammering, and possibly not that important for disability in general. However, I deal with it anyway. Most of this page deals with the current law. There is something at the end about s.14 Equality Act 2010 which is not yet in force but was supposed to target this kind of discrimination.
Multiple discrimination can be either ‘additive’ or ‘intersectional’ There is no particular problem with ‘additive’ multiple discrimination. This is where two forms of discrimination happen at the same time but are not related to each other.
A lesbian experiences both homophobia and sexist bullying from her employer during the same incident. This can clearly be unlawful under the Equality Act, as being related to both sexual orientation and sex.
The example is from: ‘Assessing the impact of a multiple discrimination provision’ (pdf, link to archived equalities.gov.uk).
The issue is how far ‘intersectional’ multiple discrimination is unlawful. This is where a unique combination of characterisics results in discrimination:
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.
A bus driver does not allow a Muslim man onto a bus because he is stereotyped as a ‘potential terrorist’.
These two examples are from: ‘Assessing the impact of a multiple discrimination provision’ (pdf, link to archived equalities.gov.uk).
The Labour government passed s.14 Equality Act (below) to cover ‘intersectional’ multiple discrimination to some extent. However, s.14 has not yet been brought into force. So what is the position under current law? – in other words under Equality Act 2010 minus s.14.
Miriam O’Reilly v BBC (employmentcasesupdate.co.uk} January 2011, Employment Tribunal Case no.2200423/10
This is the well publicised case brought by the former Countryfile presenter for age and sex discrimination. The claimant succeeded in her claim for age discrimination. There was held to be no sex discrimination, because the tribunal didn’t think an older man would have been treated better.
Though not necessary for its decision, the employment tribunal also considered whether it would be unlawful to have a criterion that women over 40 could not apply for a job (combined gender and age). The tribunal said this would be unlawful, even without the aid of s.14. The employment tribunal said (at para 245-246):
“…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.”
“The way that this can be fitted in with the comparative exercise set out in the legislation is that a woman over 40 can compare her treatment with a man over 40; by which exercise the sex discrimination element of the treatment is established. Similarly the woman over 40 can compare her treatment to another person under 40, thereby establishing the age discrimination treatment”
Accordingly, there could effectively be a claim for combined discrimination even without s.14.
This is only an employment tribunal decision, and so does not have the authority of an appeal decision. Also on the facts the tribunal held there was only age discrimination, not multiple discrimination. However, the arguments made by the tribunal seem cogent, and may well be followed in future.
Would an older woman have a claim if the employer is only willing to accept a younger man? To put it another way, what if an older man and a younger woman would have been treated in the same way as the older woman? The tribunal’s analysis of the comparative exercise might suggest that the older woman does not have a claim here. However, even the BBC’s counsel in the O’Reilly case seems to have argued that the older woman would have a claim here (para 243), and the tribunal did not disagree. In the absence of s.14, the position remains to be decided. (S.14 should cover this situation if and when brought into force.)
What about claiming on three (or more?) combined grounds. On the basis of the O’Reilly decision, this seems possible in principle:
A man is turned down for a job because he is a young male Muslim, stereotyped as a potential terrorist. He may be able to claim for age discrimination, sex discrimination, and religious discrimination. As regards sex discrimination, for example, he could argue he was treated less favourably than a young Muslim female would be.
Could one claim both discrimination arising from disability and, for example, sex discrimination, where there is a combination of sex with “something arising in consequence of” the disability? From the legislation it seems likely that this is possible, though there is no authority on it – and who knows if the situation will ever arise?
A case holding that a form of combined sex and race discrimination constituted unlawful indirect discrimination is Ministry of Defence v DeBique (link to bailii.org). For commentary, see Cloisters: Equalities briefing six: Dual discrimination (pdf. cloisters.com).
Harassment related to combined characteristics may well be covered under the Equality Act:
“Unlike the prohibition of direct discrimination, the prohibition of harassment is not expressly comparative, and conduct involving a combination of protected characteristics is more likely to satisfy the standard of being “related to” each characteristic, even when considered separately. Moreover, because the associative definition of harassment used in the Bill eliminates any element of causation, harassment is not susceptible to the same problems of proof as direct discrimination.”
Baroness Royall of Blaisdon, HL Hansard, 13 Jan 2010, col 546-7.
A note on compensation
Being able to claim eg both sex discrimination and age discrimination does not mean one gets any more compensation than if the discrimination had been related to a single characteristic, eg sex discrimination. The issue with combined claims is more whether or not there is a claim at all under the Equality Act. (As discussed above, it seems there often will be a claim.)
Links on current law (without s.14):
Multiple discrimination: 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.
The Equality Act 2010 section 14 (link to legislation.gov.uk) contains a provision – not yet in force – to cover direct discrimination on up to two combined grounds, e.g. disability and gender, or disability and race. This is often known as ‘dual discrimination’.
Delay coming into force
It was announced in the Plan for Growth (gov.uk) as part of the 2011 Budget that s.14 will not be brought into effect.
However in May 2012 the government said only it would ‘delay’ the introduction of the dual discrimination provision (Ministerial Statement (gov.uk)).
S.14 is aimed at ‘intersectional’ multiple discrimination. The background legal issues are outlined above, and in the April 2009 consultation document which preceeded s.14: ‘Assessing the impact of a multiple discrimination provision’ (pdf, archived equalities.gov.uk).
The Government considered it too complicated and burdensome to allow claims on three or more different discrimination grounds.
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, see above on these other types of claim.
The Government has confirmed to Parliament that for the purpose of dual discrimination under s.14, 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).
Further links on s.14:
- News article: Equality bill dual discrimination clause agreed (link to Personnel Today, 13/7/09)
- Government Equalities Office factsheet, 2009 (pdf, archived equalities.gov.uk).
- House of Commons Committee debate: col 682-686 Public Bill Cttee, 2nd July 2009 (parliament.uk) – and clause actually added but no debate: col 693-694 7th July 2009 (parliament.uk). 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.
© Allan Tyrer 1999-2012
Last updated 19th July, 2012