Direct Discrimination: Defences

It is a couple of months since I promised the last post in my brief series on direct discrimination with a summary on an employer’s defence to direct discrimination claims. Life got in the way, etc.

But first a recap,  section 13 of the Equality Act 2010 sets out that that no employer can treat a worker less favourably because of a protected characteristic than they would treat another person who did not share that protected characteristic. A protected characteristic is one of the following: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. When they do so they directly discriminate the employee.

It is commonly said that with the exception of direct age discrimination there is no defence to direct discrimination. With the exception of the statutory defence which is only rarely successful (and is summarised below) and the special defence available in age discrimination complaints (also summarised below) this is strictly correct but it is also misleading. The fact is direct discrimination cases are hard to prove and the absence of any proportionality defence means that the battleground is on whether the elements of direct discrimination are met. What in fact is meant by the claim of there being no defence is that where direct discrimination is found there is no justification defence (as there is on most other types of discrimination claim. In no particular order, the 10 defenses I have thought of (there may well be more) are:

1. Proportionality

Unlike indirect discrimination claims an employer has no defence that their conduct was a proportionate means of achieving a legitimate aim. This is not a legal definition but I often view this as a ‘this is not an ideal situation but it is the least bad one we could implement’ type scenario. That is, however, unless the protected characteristic engaged is that of age. In which case, section 13(2) of the Equality Act 2010 specifies that treating an employee less favourably because of age is in fact lawful so long as the conduct is a proportionate means of achieving a legitimate aim.

Whilst the language used is the same as used in elsewhere in the Equality Act decisions of the European Court of Justice (ECJ) have severely limited the scope of this defence. A legitimate aim for the purposes will now be a social policy objective and therefore, especially for private employers, this will be a difficult defence to mount. The Supreme Court has confirmed the somewhat niche nature of this defence in Seldon v Clarkson Wright & Jakes [2012]. In fact, even in the case of public employers this has been a difficult test to meet. Earlier this year the Court of Appeal (the decision is expected to be appealed to the Supreme Court) decided in  The Lord Chancellor & Anor v McCloud & Ors [2018] that a government implemented pension change that treated older workers more favourably (in order to soften the blow of the changes of those nearing retirement following a TUC recommendation) was indeed directly discriminatory.

2. Unconnected reason 

A common misconception is that the Equality Act is designed to create fairness in the workplace. I would certainly be in favour of such legislation but the Equality Act does not meet this need. The Equality Act only protects an employee from unwanted conduct by an employer or its agents  that is related to a protected characteristic. The next defences is rooted in this misconception.

The unconnected reason defence is possibly the most common defence. In an direct discrimination complaint an employee will need to show that there is a protected characteristic engaged and that there has been less favourable treatment compared to a comparator.

If a female employee and male colleague each apply for a promotion but the male colleague is successful in being offered the job then the unsuccessful candidate may well feel she has been directly discriminated against. In this case the protected characteristic (sex) and the less favourable treatment (the refusal of promotion) are clear. But there is a third step the employee would need to meet, namely that the reason for the unfavourable treatment was because of the her sex.

An employer faced with such a claim would likely want to argue that while the employee certainly was treated less favourably this had nothing to do with her sex. Instead, it is because the male candidate was simply better suited to the job for reasons unconnected with the protected characteristic, for example he has performed the same role for a competitor and so has better experience. If they can persuade a tribunal that this different reason was the reason for the treatment then the complaint will be unfounded.

This defence can also have a more sinister side. Even if an employee is treated less favourably for an unreasonable  reason this will not be actionable so long as that reason is connected to a protected characteristic. So, to return to the hypothetical example above, if while driving to the interview the unsuccessful candidate unknowingly cut up the interviewing manager causing an accident, and the manager recognised the employee as the culprit and decided to appoint the other candidate in a pique of revenge then that too would be a defence and make the claim unactionable if a tribunal were to accept that account.

In either scenario if the reason for the treatment is unconnected to the protected characteristic then the employer will be able to defeat any direct discrimination claim.

3. Equally Bad

The second way unfairness is beside the point in a direct discrimination defence is by way of what is colloquially called the bastard defence.

Remember, one of the components of a direct discrimination complaint is that because of a protected characteristic an employee has been treated less favourably (i.e., worse) because of that protected characteristic.

Consider the following hypothetical defence statement:

“The truth of the matter is that we are very bad employers. We work our workers to the bone, disregard all health and safety regulations, we always pay our workers late as that delay generates extra income for the company and we will dismiss anyone who talks about raising a complaint or of unionising; we accept unreservedly that our treatment of the claimant has been reprehensible and even unlawful. However, that treatment has no relation whatsoever to the claimed protected characteristic – the reality is we are an equal opportunities employer in that we treat every worker, whatever their background, equally poorly.”

The defence is certainly not going to win the employer any Public Relations awards and may well leave an employer open to other legal claims but insofar as a direct discrimination claim goes if the tribunal accepts that the employer really does treat everyone equally poorly then (with the exception of certain maternity/pregnancy complaint) the employer is likely to successfully defeat any direct discrimination complaint.

It is arguable that this applies even when the conduct complained of does relate to a protected characteristic. For example, to slightly alter the facts of a 2001 Employment Tribunal  case, suppose a Jewish employee was required (with other colleagues who did not share the same protected characteristic) to wear a Nazi uniform. This is manifestly offensive, unfair, and derogatory conduct that has no basis in any workplace but, on a direct discrimination front, it is arguable that the employer’s defence that this was applied to everyone equally may well be successful because the employee was treated the same as the other employees who did not share that protected characteristic.

Thankfully, were such a situation to arise again the fact there is now no need for a comparator in harassment cases mean if direct discrimination is not available a claim could be pursued on harassment grounds under section 26 of the Equality Act 2010, or even fashioned as an indirect discrimination complaint.

4. Occupationally required

This is not common but Schedule 9, part 1(1) of the Equality Act allows the discrimination to occur where a job holder needs to be of a certain protected characteristic. In such case the proportionate means of achieving a legitimate aim test is used to assess whether this requirement is reasonable. This is rarely appropriate but could be seen as reasonable in situations such as where a rape victim advisory role is required to be female or where a church’s outreach worker must share the faith of the employer (i.e a Methodist outreach worker should be a Methodist).

5. Disability

In a similar manner the Equality Act places an obligation to make adjustments for disabled workers to avoid or mitigate any disadvantage arising from their disability. This requirement has been found to include, in certain circumstances, an obligation to treat the employee more favourably than their peers.

Because in direct discrimination there is now no need to show that the reason for the treatment being applied for was because of their protected characteristic but simply because of a protected characteristic an enterprising employee who had not been given, for example, a reduced caseload when his disabled colleague had as a reasonable adjustment could claim he was being directly discriminated. The argument would be that he was being treated less favourable (higher workload) than his colleague because of disability (namely his colleague’s disability) .

Fortunately section 13(3) of the Equality Act 2010 specifies that if “the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.” The result of someone who is not disabled is being treated less favourably than a disabled person because of disability then that will mean the employee will have no claim.

6. No Shifting Burden

Along with the unconnected reason defense this is the most important and common defence. In an earlier post I outlined the burden of proof test in direct discrimination cases that is found in section 136 of the Equality Act. If a claimant cannot satisfy this test then, simply put, the employer will successfully defend the case and there will be no finding of discrimination.

In practice this means that the employee must be able to bring to the tribunal evidence that, in the absence of any other explanation, the less favourable treatment was because of the protected characteristic.  For the employee this is frequently a very difficult task as employers are unlikely to want to volunteer information that would show that the reason for their treatment is related to a protected characteristic.

It will very often be that the employer’s best chance of defeating a claim is to argue that the employee has not shown evidence that points to the reason for the conduct complained of being because of the protected characteristic and so the employer has no case to answer.

7. No material causation

The seventh reason is not common but is a strategy that minimises the significance of conduct that is related to a protected characteristic. In an earlier post causation in direct discrimination was discussed and the case of Nagarajan was considered.  In Nagarajan the House of Lords recognised that decisions are often made for multiple rather than just one reason and that in terms of direct discrimination claims the fact that, for example, a decision was made for one reasonable reason and one prohibited reason caused by a protected characteristic is sufficient to establish that the decision was because of a protected characteristic. This is a helpful decision that makes it more difficult for employers to cover discriminatory conduct under a blanket of reasonable business reasons.

However,  Nagarajan still allowed a decision that is tainted by discrimination to avoid liability for direct discrimination. To recall, the relevant passage of the decision in Nagarajan (which was a race discrimination case) is “Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”

If a protected characteristic were established as a reason for less favourable treatment but not as one that had a significant influence on the outcome then the appear may have a defence on this basis. For example, a racist manager would have dismissed a worker for proven misconduct but, the fact that the employee is black, meant that the manager found this a much easier decision than would otherwise have been the case even though the outcome is the same. This is in effect a different angle on the bastard defence.

Given the purpose of the legislation is to combat discriminatory conduct in UK workplaces it is an interesting question whether this approach, which effectively does not prohibit prejudicial conduct in employment situations so long as they have limited practical effect, is the right course of action rather than, as is the case in indirect discrimination cases (see Lady Hale’s judgement in Essop v Home Office) allowing nominal or no damages in cases where the the discriminatory conduct had no affect on the claimant. The latter having the advantage of at least marking out discrimination as an unlawful act.

8. Isolated occurrences

It is frequently the case that in direct discrimination cases an employee will complain of a series of issues whereby they allege they have been treated less favourably.

For example, a claimant may allege that

  • On 5 January 2019 she was given a poor performance review by her manager and this was because she was disabled
  • On 6 February 2019 she was given accused of misconduct by a company director and he initiated a misconduct investigation. She does not believe the misconduct investigation would have happened if she were not Black.
  • On 30 April 2019 she is dismissed for misconduct by the company director. She does not believe the misconduct investigation would have happened if she were not Black.
  • On 5 May 2019 HR refused her an employment reference, again she believes this is because  she is black.

As in most employment tribunal claims a claim for must be initiated within three months of the think being complained of. If on 6 May 2019 the claimant begins Employment Tribunal  proceedings only two of the four claims would be within three months and it is likely the employer would seek to strike out the first two claims (because they occurred before 7 February 2019). This is of course a frequent and in my view perverse consequence of UK employment law in that an employee, even if they are trying to resolve issues with the employer, must initiate a claim within three months to guarantee their claim will be considered.

An employee can of course argue that it is just and equitable for all the claims to be heard but this is at the discretion of the employment judge and is far from guaranteed. In this scenario an employee would be likely to argue that section 123(3) comes to their aid. This provides that when conduct continues over a period of time all the issues can be raised so long as the last incidence was within three months. However, the law on continuing act is complex and will consider the extent to which all the events are related, who was involved, whether they are all related to the same claim type.

For the employer this often be a major battleground to argue that if not all then as much of the claim is out if time and not part of a continuing act and by doing so exclude as much of the claim as possible from being considered. To return to the example above, since the misconduct investigation and dismissal are clearly related  and involve both the same claim and same managers there is a good chance that that will be a continuing act meaning that even though the event occurred 3 months or more before the dismissal it is under section 123(3) treated as still being in time (as was the case recently in Hale v Brighton & Sussex NHS Trust). However, the poor performance review  by a different person for performance issues and because of a different characteristic is likely to be excluded, even if this is a case whereby there is very strong evidence that the claim would succeed.

9. Not Responsible

Sometimes an employee can be subject to outrageous and manifestly discriminatory behaviour even at work or in other contexts that would not have arisen but for their work and yet still find the employer defending a claim against them. This can occur in two types of context.

First, there may be cases where an employee is subject to, for example, racist abuse from a customer or some other person with whom the employer does not have any sort of formal or contractual relationship.  The fact that that conduct occurred at work does not mean that the employer will be liable (although it might be, depending on the circumstances).  This can be seen in the deeply unfair case of Kemeh v MOD [2014]. In a place of work the claimant was subjected to racial abuse by a kitchen worker. However, the kitchen worker was not employed by the MOD but by a subcontractor, Sodexo. The MOD accepted that the abuse had happened, that it was indeed racial, but nevertheless denied liability since they were only liable for their own employees, not other employees even if they provided services to the employer.

Second, Section 109 of the Equality places a significant burden on employer that they will be liable for anything discriminatory done by an employee “in the course of employment”  – effectively this means that anything done by an employee which is discriminatory the employer will be responsible for. Section 109(3) even goes so far as to say that it “does not matter whether that thing is done with the employer’s or principal’s knowledge or approval.” In practice this means nearly everything done by a manager at work will mean as well as they individually being responsible (section 110 of the Equality Act) the employer will also be liable. This has been found to apply even to conduct that occurs outside the workplace in work related social gatherings – see Chief Constable of the Lincolnshire Police v Stubbs [1999].

However, it remains the case that there is a limit and that it is possible for discriminatory issues to arise that would not have occurred but for employment to nevertheless be outside  the course of employment.

10. All reasonable steps

Finally, what the claims about there being no defence to direct discrimination miss is that section 109(4) does in fact provide a complete statutory defence to employers. In Canniffe v East Riding of Yorkshire Council [2000] the EAT set out that an employer relying on this defence must show that they took all steps to prevent their employees engaging in the conduct complained of (for example, publicising equality policies, investigating concerns, and disciplining prior acts of discrimination) and that there were no other reasonable actions the employer could have taken. For the employee facing such a defence it is important to identify where the employer’s conduct feel short of expectations to resist the argument that they did everything reasonable to stop the conduct and, by doing so, ensure the employer will remain liable (important as the employer is more likely to pay any financial remedy than a private individual).

Any more defences, then please let me know.