Double or nothing. Would protection against dual discrimination improve the odds for claimants?

Last month, Labour unveiled plans for a race equality act.  If introduced, the act would extend equal pay rights to minority ethnic and disabled workers and introduce mandatory ethnicity pay gap reporting.  It would also enact the protections against dual discrimination that have been dormant in the Equality Act since it was introduced in 2010.  

What is dual discrimination?

Dual discrimination was written into the Equality Act 2010 by a former Labour government.  But having delayed its introduction, the Coalition government declined to bring it into force in April 2011.

As drafted, the provisions apply to direct discrimination only and provide for a claim to be brought on the basis of the intersection between two (and not more) characteristics.  The relevant characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.  The characteristics of pregnancy and maternity and marriage and civil partnership were excluded due to the lack of available evidence that these characteristics, when combined with others, gave rise to any problems in practice.  Claims could be brought where, because of a combination of two relevant protected characteristics, an employee is treated less favourably by their employer.

Impact on those undergoing the menopause

One group that stands to benefit is women suffering the symptoms of menopause.  Negative treatment related to the menopause can best be described as gendered ageism.  Claims brought as either sex or age discrimination tend to fail if an employer can show that it would have treated others in the same age bracket or a man with a health condition in the same way.  Dual discrimination would allow menopausal women to bring claims that are targeted more precisely at their specific circumstances and avoid the need to attempt to prove that their symptoms amount to a disability.

Dual discrimination would benefit certain minority groups

The menopause is just one example of intersectional discrimination.  The consultation conducted prior to the introduction of the Equality Act identified that some of the worst discrimination and disadvantage was suffered by people falling into more than one minority group.   A recent report by the Fawcett Society shows that black and minority ethnic women in the UK face the most significant pay gap.  In particular, women of Bangladeshi heritage earn an average of a third less than white British men.  Dual discrimination would provide more tailored protection to address intersectional disadvantage.

But the provisions are complex and potentially burdensome for employers

Dual discrimination may lead to complex and unwieldy tribunal claims, in which multiple causes of action are cited in relation to a single act.  An individual claim is limited to a combination of two protected characteristics but this would not prevent claimants adding further discrimination claims based on alternative combinations of characteristics.  For example, an older, disabled woman might bring single strand claims of age, sex and disability discrimination, together with three dual discrimination claims: age/sex; age/disability and sex/disability.  

In total, the seven protected characteristics on which dual discrimination claims can be founded give rise to 21 different forms of dual discrimination.

And arguably dual discrimination protection is unnecessary.

Detractors have argued that dual discrimination is unnecessary for two main reasons:

  • First, when bringing a single strand direct discrimination claim, a claimant need not prove that the protected characteristic is the sole cause of less favourable treatment; it is enough that it is an effective cause.  So, in theory, an individual discriminated against on more than one characteristic should be able to succeed in a single strand claim.  
  • Second, to establish less favourable treatment the tribunal must compare the claimant’s treatment with someone whose material circumstances are the same, other than the protected characteristic.  So, for example, in a race claim, the treatment of a minority ethnic woman should be compared with that of a white woman and not a white man.  This should effectively neutralise considerations of gender, leaving only the determination of whether treatment was on grounds of race.

However, while theoretical protection is available, the Equality Act does not clearly signpost the rights available to those discriminated against on the basis of the intersection between more than one protected characteristic.  Claimants put at an intersectional disadvantage must overcome barriers that do not exist for those bringing claims where only one protected characteristic is in issue.

Dual discrimination is likely to increase rather than alleviate the pressure on employment tribunals.  

Labour’s suggestion that the right to bring a dual discrimination claim might ease backlogs in the tribunal system is surprising.  Midway through last year, the claims backlog stood at almost half a million.  While the statistics have improved slightly, the introduction of a new type of claim, unfamiliar to users of the tribunal, would not normally be expected to foreshadow a near term reduction in claims.  In fact, the 2009 impact assessment on the Equality Act anticipated an initial surge in claims, with claimants deploying dual discrimination on an additive, rather than a standalone basis.  This trend would likely continue until such time as claimants had a better understanding as to how tribunals would interpret the new provisions.  

For further information on the Menopause in the Workplace, see our briefing.

We discuss intersectionality in the workplace in our Diversity Matters podcast.