It’s been an interesting year for discrimination law, says
Lucinda Bromfield

''It’s been an interesting year for discrimination law''
Lucinda Bromfield

Lucinda Bromfield of Bevans Solicitors gives us a whistle-stop tour of the highlights of 2009 and some predictions for the future of Equality Law.

Equality, Equality, Equality. For the last couple of years it’s been all over the media, to Europe (several times) and running rampage in Harriet Harman’s speeches. It’s also been a recurring theme in Employment Tribunals throughout England and Wales. According to the 2008/9 statistics most types of discrimination claims (except sex discrimination and equal pay) have increased. Sexual orientation claims have increased the least, at around 5% and Age discrimination claims the most, by approximately 29%.

Presumably, some of the increase has been caused by the state of the economy and the subsequent job losses. The high profile given to discrimination cases in the media and political debate on the subject has made employees more aware of equality laws than ever before. Employees who find themselves made redundant will often look at their employment relationship as a whole to see if their employer’s actions could be viewed as discrimination.

Regardless of economy, it is likely that the increase in most types of discrimination claims will continue. Not only has public awareness increased but 2009 has seen equality laws expand to protect more people in more situations.

Coleman v Attridge Law saw an expansion of the Disability Discrimination Act to include protection for those ‘associated’ with someone who is disabled. The case involved a carer who requested time off to look after her disabled son. It raises the possibility that employees associated with those covered by other discrimination legislation (e.g. age, religion, race, sexual orientation) may also be covered by the idea of ‘discrimination by association’.

This ruling taken together with the Court of Appeal’s decision in 2008 in English v Thomas Sanderson Blinds has expanded Equality law far beyond most employers’ expectations. Mr English was known to be heterosexual, and he was not discriminated against as a result of his sexual orientation – however he was still protected by the Equality Act (Sexual Orientation) Regulations 2003 . This means that those who have no protected characteristics nor even an association with someone with protected characteristics may still be able to succeed in a discrimination and/or harassment claim under the equality laws.

The nature of protected characteristics has changed as well. 2009 saw the Employment Appeal Tribunal agree that certain times during failed IVF treatment attract equivalent protection to pregnancy and that certain new beliefs (in climate change or in the use of psychics to help police investigations) could be protected under the Religion or Belief Regulations. This doesn’t mean that an eco-warrior or a spiritualist would necessarily succeed in a claim for discrimination on the grounds of their beliefs. It does mean that the door for discrimination claims has been firmly opened for those who claim they have been discriminated against because of their unusual beliefs.

It can be argued that these expansions are just our courts doing what they have always done– interpreting legislation to have meaning in the modern world. But the expansion of the rights available under equality legislation inevitably leads to clashes between opposing rights.

In 2009, several high profile cases looked at the clash between protection for religious beliefs and other protected characteristics. Ladele concerned a registrar who believed that officiating at civil partnerships was inconsistent with her Christian faith. McFarlane concerned a relationship therapist who felt the same about giving psycho-sexual therapy to same sex couples. And the JFS case examined the question of whether a requirement that a child’s mother be born Jewish amounted to racial discrimination. While the judgments were more complex than we have space to explore here the ultimate decisions were that religious beliefs are to be given a secondary place to protection against sexual orientation and race discrimination.

It is probable that some religious beliefs are going to continue to clash with other protected characteristics (particularly sexual orientation). And it is likely that the religious beliefs are going to continue to lose, not least because the European Commission has issued a warning that the current law that applies to faith based organizations allows too much scope for discrimination on the grounds of sexual orientation.

Future Expansion of the Equality Laws

The Single Equality Act is due to arrive in 2010 (though parts will not apply until 2011 or later). Changes to the current law could include: the ability to bring discrimination claims based on two factors (e.g. being a disabled woman), an extension of protection from third party discrimination in the workplace, transparency regarding pay, elements of positive discrimination and numerous other changes. Exactly what the changes will be and when they will take effect remains to be seen. It may depend on which party holds power after the general election unless the Government succeeds in its plans of passing the Bill before the election.

Regardless of the Equality Bill, some changes will need to be made. The European Commission, has raised questions over our current law relating to sexual orientation, has warned that our provisions on disability could be inadequate, warned that we need a ban on ‘instructions to discriminate’ and said that we need provision for class actions.

With a review of the default retirement age and the new ‘fit notes’ also expected it is going to be an exciting year. Watch this space……

Lucinda Bromfield, Employment Solicitor at Bevans Solicitors will be providing more insight on the current employment law and what the future holds when speaking at the annual HR Directors Employment Law Forum 2010, taking place 18th March 2010 in London. Click here to find out more on programme and speakers, or to book a place.