Country report : non-discrimination : transposition and implementation at national level of Council Directives 2000/43 and 2000/78 : United Kingdom 2019.
Date: 2020-07-29
Institutions: Directorate-General for Justice and Consumers
Subjects: United Kingdom, age discrimination, anti-discriminatory measure, discrimination based on disability, discrimination on the basis of sexual orientation, equal treatment, ethnic discrimination, national law, religious discrimination, report, sexual discrimination, social policy

, 

United Kingdom 

2020 

including summary 

 
 
 
 
 
EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.1 Non-discrimination and Roma coordination 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Country report  

Non-discrimination 

Transposition and implementation at national level of 
Council Directives 2000/43 and 2000/78 

United Kingdom 

Lucy Vickers 

Reporting period 1 January 2019 – 31 December 2019 

2020    Directorate-General for Justice and Consumers 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Luxembourg: Publications Office of the European Union, 2020 

© European Union, 2020 

PDF  

ISBN 978-92-76-19821-5 

ISSN 2599-9176  

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Country report - Non-discrimination – United Kingdom – 2020 

CONTENTS 

3 

3.1.1 

EXECUTIVE SUMMARY ........................................................................................ 5 
INTRODUCTION ................................................................................................ 10 
GENERAL LEGAL FRAMEWORK .................................................................. 12 
1 
THE DEFINITION OF DISCRIMINATION .................................................... 13 
2 
2.1  Grounds of unlawful discrimination explicitly covered ................................ 13 
2.1.1  Definition  of  the  grounds  of  unlawful  discrimination  within  the 
directives ................................................................................. 13 
2.1.2  Multiple discrimination ............................................................... 16 
Assumed and associated discrimination ....................................... 17 
2.1.3 
2.2  Direct discrimination (Article 2(2)(a)) ...................................................... 18 
Indirect discrimination (Article 2(2)(b)) ................................................... 19 
2.3 
Statistical evidence ................................................................... 20 
2.3.1 
2.4  Harassment (Article 2(3)) ...................................................................... 22 
2.5 
Instructions to discriminate (Article 2(4)) ................................................ 23 
2.6  Reasonable  accommodation  duties  (Article  2(2)(b)(ii)  and  Article  5  Directive 
2000/78) ............................................................................................. 23 
PERSONAL AND MATERIAL SCOPE ............................................................ 27 
3.1  Personal scope ..................................................................................... 27 
EU  and  non-EU  nationals  (Recital  13  and  Article  3(2),  Directive 
2000/43 and Recital 12 and Article 3(2), Directive 2000/78) .......... 27 
3.1.2  Natural and legal persons (Recital 16, Directive 2000/43) .............. 27 
Private and public sector including public bodies (Article 3(1)) ........ 27 
3.1.3 
3.2  Material scope ...................................................................................... 28 
Employment, self-employment and occupation ............................. 28 
3.2.1 
3.2.2  Conditions  for  access  to  employment,  to  self-employment  or  to 
occupation,  including  selection  criteria,  recruitment  conditions  and 
promotion,  whatever  the  branch  of  activity  and  at  all  levels  of  the 
professional hierarchy (Article 3(1)(a)) ........................................ 29 
Employment  and  working  conditions,  including  pay  and  dismissals 
(Article 3(1)(c)) ........................................................................ 29 
Access  to  all  types  and  all  levels  of  vocational  guidance,  vocational 
training,  advanced  vocational  training  and  retraining,  including 
practical work experience (Article 3(1)(b)) ................................... 29 
3.2.5  Membership  of,  and  involvement  in,  an  organisation  of  workers  or 
employers, or any organisation whose members carry on a particular 
profession,  including  the  benefits  provided  for  by  such  organisations 
(Article 3(1)(d)) ........................................................................ 29 
Social  protection,  including  social  security  and  healthcare  (Article 
3(1)(e) Directive 2000/43) ......................................................... 29 
Social advantages (Article 3(1)(f) Directive 2000/43) .................... 30 
Education (Article 3(1)(g) Directive 2000/43) ............................... 31 
Access to and supply  of goods and  services that are available to the 
public (Article 3(1)(h) Directive 2000/43) .................................... 33 
3.2.10  Housing (Article 3(1)(h) Directive 2000/43) ................................. 34 
EXCEPTIONS ............................................................................................. 36 
4.1  Genuine and determining occupational requirements (Article 4) .................. 36 
4.2  Employers  with  an  ethos  based  on  religion  or  belief  (Article  4(2)  Directive 
2000/78) ............................................................................................. 36 
4.3  Armed  forces  and  other  specific  occupations  (Article  3(4)  and  Recital  18 
Directive 2000/78) ................................................................................ 40 
4.4  Nationality discrimination (Article 3(2)) ................................................... 40 
4.5  Health and safety (Article 7(2) Directive 2000/78) .................................... 41 
4.6  Exceptions related to discrimination on the ground of age  (Article 6 Directive 
2000/78) ............................................................................................. 42 
4.6.1  Direct discrimination ................................................................. 42 

3.2.7 
3.2.8 
3.2.9 

3.2.3 

3.2.4 

3.2.6 

4 

3 

 
 
6 

5 

Special conditions for young people and older workers .................. 44 
4.6.2 
4.6.3  Minimum and maximum age requirements ................................... 44 
4.6.4  Retirement ............................................................................... 44 
4.6.5  Redundancy ............................................................................. 46 
4.7  Public security, public order, criminal offences, protection of health, protection 
of the rights and freedoms of others (Article 2(5), Directive 2000/78) ......... 46 
4.8  Any other exceptions ............................................................................. 46 
POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)
 ................................................................................................................. 48 
REMEDIES AND ENFORCEMENT ................................................................. 50 
6.1 
Judicial and/or administrative procedures (Article 7 Directive 2000/43, Article 
9 Directive 2000/78) ............................................................................. 50 
6.2  Legal  standing  and  associations  (Article  7(2)  Directive  2000/43,  Article  9(2) 
Directive 2000/78) ................................................................................ 53 
6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78).. 54 
6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) ...... 55 
6.5  Sanctions  and  remedies  (Article  15  Directive  2000/43,  Article  17  Directive 
2000/78) ............................................................................................. 55 
BODIES FOR THE PROMOTION OF EQUAL TREATMENT (Article 13 Directive 
2000/43) .................................................................................................. 59 
IMPLEMENTATION ISSUES........................................................................ 64 
8.1  Dissemination of information, dialogue with NGOs and between social partners
 .......................................................................................................... 64 
8.2  Measures to ensure compliance with the principle of equal treatment (Article 14 
Directive 2000/43, Article 16 Directive 2000/78) ...................................... 65 
COORDINATION AT NATIONAL LEVEL ....................................................... 67 
9 
10  CURRENT BEST PRACTICES ....................................................................... 68 
11  SENSITIVE OR CONTROVERSIAL ISSUES .................................................. 69 
11.1  Potential breaches of the directives at the national level ............................ 69 
11.2  Other issues of concern ......................................................................... 69 
12  LATEST DEVELOPMENTS IN 2019 .............................................................. 71 
12.1  Legislative amendments ........................................................................ 71 
12.2  Case law .............................................................................................. 71 
12.3  Cases brought by Roma and Travellers .................................................... 73 
ANNEX 1: MAIN TRANSPOSTION AND ANTI-DISCRIMINATION LEGISLATION .. 75 
ANNEX 2: INTERNATIONAL INSTRUMENTS ....................................................... 78 

7 

8 

4 

 
 
 
EXECUTIVE SUMMARY 

1. Introduction 

The United Kingdom (UK) comprises England, Wales, Scotland and Northern Ireland (NI), 
with the term Great Britain (GB) used to refer to England, Wales and Scotland. The UK is 
a parliamentary democracy, based around the core principle of parliamentary sovereignty. 
It has neither a written constitution nor an entrenched constitutional bill of rights, but an 
extensive  set  of  constitutional  conventions  establish  what  has  been  described  as  an 
unwritten constitution. The English, Welsh, Scots and Irish have historically been regarded 
as  the  four  major  ethnic  groups  in  the  UK  but  the  UK  has  always  been  a  country  of 
migration and the increase in the size and variety of different ethnic groups since the late 
1940s,  added  to  the  constant  influx  of  migrant  labour  from  EU  and  non-EU  states,  has 
made the UK a multicultural state. 

Certain  ethnic  minorities,  including  the  native  Traveller  communities,  continue  to  suffer 
from high rates of unemployment, social exclusion and poverty. Gypsy, Roma and Traveller 
people  have  the  worst  outcomes  of  any  ethnic  group  across  a  range  of  areas,  including 
education, health, employment, criminal justice and hate crime. Following the Referendum 
result in June 2016 in which the UK voted to leave the EU, an increase in hostility towards 
EU migrants has been reported.  The number of race hate crimes recorded by the police 
has increased and there has also been an increase in recorded hate crimes motivated by 
religion.  The  uneven  protection  afforded  to  race  and  religion  and  other  protected 
characteristics  with  respect  to  hate  crime  is  under  review  by  the  Law  Commission,  the 
Scottish Parliament and the Department of Justice Northern Ireland. 

Some  prejudice  also  exists  against  gay/lesbian/bisexual/transgender  people.  In  recent 
years, however, there has been much wider social acceptance of the rights of gay men and 
women to  full equality.  Since 2013 same-sex  couples  have been  able to marry in  Great 
Britain.  In  2019  the  Marriage  (Same-sex  Couples)  and  Civil  Partnership  (Opposite-sex 
Couples) (Northern Ireland) Regulations 2019 introduced same-sex marriage in Northern 
Ireland, as well as allowing heterosexual couples to enter civil partnerships, with the first 
marriages to take place in 2020 after the cut-off date for this report. 

Disabled  people  continue  to  experience  disadvantage,  earning  less  per  hour  on  average 
than non-disabled people. Those disabled people who cannot work are dependent on an 
increasingly  restricted  welfare  regime,  with  disabled  people  experiencing  significant 
welfare cuts. They also face poorer health and lack of access to suitable housing. 

In 2018 the House of Commons Women and Equalities Committee published a report on 
older people and employment, concluding that older workers experience discrimination at 
work, particularly with regard to recruitment.  

In  Northern  Ireland  the  ongoing  tensions  between  the  Unionist/Protestant  majority  and 
Nationalist/Catholic minority continue to generate sectarian division, though much less so 
than  during  the  period  of  ‘the  Troubles’.  Sectarian  divisions  also  feature  in  parts  of 
Scotland.  

There  are  some  inequalities  in  experience  between  people  of  different  religions,  for 
example Muslims experience the lowest employment and poorest health outcomes of any 
religious group. 

Since  2000  a  series  of  positive  duties  have  been  imposed  upon  public  authorities  to 
promote equality of opportunity on all the equality grounds. Positive action strategies have 
been adopted at national, regional and local level across the various equality grounds.  

5 

 
 
 
 
 
 
 
 
 
 
 
 
2. Main legislation 

As the UK has no written constitution, legislation is the primary tool for establishing anti-
discrimination law in the UK. The UK has ratified all the major international human rights 
treaties and the main Council of Europe human rights instruments, including the ECHR, the 
Charter on Minority Languages, the Framework Convention for the Protection of National 
Minorities, the European Social Charter and the Convention on Minority Rights. The UK has 
not ratified Protocol 12 ECHR. International treaties are not directly applicable in UK law 
unless  incorporated  by  an  Act  of  Parliament,  although  they  can  be  used  to  interpret 
legislation in certain circumstances. The Human Rights Act 1998, gives effect to the ECHR 
in UK law, including Article 14, and this can provide valuable protection in some contexts 
against  discrimination.  The  devolution  settlements  under  which  power  is  devolved  to 
Scotland,  Northern  Ireland  and  Wales  also  include  additional  safeguards  particularly  as 
regards the protection of human rights. 

Anti-discrimination legislation in the UK was first introduced in the field of race/ethnicity in 
the 1960s and is now contained in the Equality Act 2010. In Northern Ireland, a separate 
legislative framework of anti-discrimination protection has been introduced for political and 
constitutional reasons. There are in addition some criminal offences relating to racial and 
religious hatred.  

The  Equality  Act  20101  now  prohibits  direct  and  indirect  discrimination,  harassment, 
victimisation and instructions to discriminate because of race (defined as ethnicity, colour, 
national origin or nationality), sex (including married or civilly partnered status, pregnancy 
and  gender  reassignment),  disability,  sexual  orientation,  religion  or  belief  and  age  in 
employment  and  occupation  and  (other  than  in  the  case  of  married  or  civilly  partnered 
status or, in the case of housing, age) access to goods and services, education, housing 
and the performance of public functions. (There are a significant number of exceptions to 
the prohibition on age discrimination which does not, further, protect under 18-year-olds 
other  than  in  the  context  of  employment  broadly  defined.)  Duties  of  reasonable 
accommodation are imposed in relation to disability.  

The provisions of the Equality Act 2010 are broadly in conformity with the requirements of 
the  2000  directives,  though  its  material  scope  is  considerably  broader.  In  particular, 
protection  against  discrimination  in  the  provision  of  goods  and  services,  healthcare  and 
housing  and  education  are  protected  for  the  grounds  covered  by  the  2000  directives 
(except for age which is not protected as comprehensively). Northern Ireland’s legislation 
adopts  broadly  similar  definitions  of  discrimination  though  there  is  no  single  equality 
provision and age discrimination is regulated only across the material scope of Directive 
2000/78/EC. 

3. Main principles and definitions 

Three  definitions  of  discrimination  have  been  incorporated  into  the  Equality  Act  2010. 
Section 13 Equality Act 2010 provides: ‘A person (A) discriminates against another (B) if, 
because  of  a  protected  characteristic,  A  treats  B  less  favourably  than  A  treats  or  would 
treat others.’ Section 13(2) goes on to provide that, ‘If the protected characteristic is age, 
A does not discriminate against B if A can show A’s treatment of B to be a proportionate 
means  of  achieving  a  legitimate  aim’.  Section  13(3)  states  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.’ 
Only in  relation to age  can direct discrimination be justified. The Equality Act 2010 also 
makes segregation on racial grounds a form of direct discrimination (Section 13(5)).  

1   Equality Act 2010, date of adoption: 08.04.2010; entry into force: 01.10.2010. 

6 

 
 
 
 
 
 
 
 
 
The position in NI is broadly similar though the definition of direct discrimination refers to 
less  favourable  treatment  ‘on  grounds  of’  rather  than  ‘because  of’  the  protected 
characteristic. 

The  Equality  Act  2010  provides  (Section  19)  that,  ‘A  person  (A)  discriminates  against 
another  (B)  if  A  applies  to  B  a  provision,  criterion  or  practice  which  is  discriminatory  in 
relation to a relevant protected characteristic of B’s’, Section 19(2) further providing that, 
‘A  provision,  criterion  or  practice  is  discriminatory  in  relation  to  a  relevant  protected 
characteristic of B’s if (a) A applies, or would apply, it to persons with whom B does not 
share  the  characteristic,  (b)  it  puts,  or  would  put,  persons  with  whom  B  shares  the 
characteristic at a particular disadvantage when compared with persons with whom B does 
not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to 
be a proportionate means of achieving a legitimate aim.’ The prohibition against indirect 
discrimination applies in GB to all the protected grounds whereas, in NI, there is not as yet 
any  prohibition  on  indirect  discrimination  related  to  disability.  The  definition  of  indirect 
discrimination in NI is materially similar to that in the Equality Act 2010 except that, where 
the  discrimination  at  issue  falls  outside  the  scope  of  the  2000  directives,  the  original 
definition of indirect discrimination that was used in the UK race and gender discrimination 
legislation continues to apply.  

Insofar as it applies to disability, the Equality Act prohibits direct and indirect discrimination 
and  also  prohibits  unjustified  discrimination  ‘arising  from  disability’  (Section  15)  and 
failures to make reasonable adjustments (Sections 20, 21). 

Section  15  defines  discrimination  arising  from  disability  as  occurring  where  ‘A  treats  B 
unfavourably because of something arising in consequence of B’s disability, and … A cannot 
show that the treatment is a proportionate means of achieving a legitimate aim’, unless ‘A 
shows that A did not know, and could not reasonably have been expected to know, that B 
had the disability’. In NI, the Disability Discrimination Act (DDA) does not prohibit indirect 
discrimination but does (s. 3A) prohibit three different concepts of discrimination: 

a)  Discrimination  for  a  reason  relating  to  a  disabled  person’s  disability,  which  can  be 

objectively justified; 

b)  Direct  discrimination  on  the  grounds  of  a  person’s  disability  in  employment  and 
occupation, i.e. where a person is treated differently because of the fact he or she is 
disabled and not for a related reason, which cannot be justified in law; and 
Discrimination  by  virtue  of  a  failure  to  comply  with  the  duty  to  make  reasonable 
adjustments,  which  cannot  be  justified  in  the  employment  and  occupation  context 
but can in the context of goods and services. 

c) 

Victimisation is prohibited across all the equality grounds in GB and NI but the definition 
of victimisation is different in the legislation that applies to GB from that which applies to 
NI.  In  GB  the  Equality  Act  2010  provides  (Section  27(1))  that,  ‘A  person  (A)  victimises 
another person (B) if A subjects B to a detriment because—(a) B does a protected act, or 
(b)A believes that B has done, or may do, a protected act’, Section 27(2) defining as a 
‘protected act’ ‘(a) bringing proceedings under this Act; (b) giving evidence or information 
in connection with proceedings under this Act; (c) doing any other thing for the purposes 
of or in connection with this Act; (d) making an allegation (whether or not express) that A 
or another person has contravened this Act’. The approach in NI is similar save that the 
person alleging victimisation has to establish less favourable treatment on the ground of 
his  or  her  having  performed  the  protected  act,  a  formulation  which  has  given  rise  to 
significant difficulty at times. In both GB and in NI the protection from victimisation does 
not apply if the allegation made by the victim was both untrue and made in bad faith. 

7 

 
 
 
 
 
 
 
Discrimination by association with a protected ground is protected under the Equality Act, 
as  is  discrimination  based  on  presumption.2  There  are  no  national  rules  to  deal  with 
situations of multiple discrimination in the UK. The Equality Act 2010 contains a provision 
(Section  14)  prohibiting  discrimination  because  of  a  combination  of  two  protected 
characteristics, but this provision is not in force.  

4. Material scope 

The  UK  anti-discrimination  legislation  applies  to  all  sectors  of  employment,  both  private 
and public. The 2011 decision of the Supreme Court in Jivraj v Hashwani [2011] UKSC 40 
cast  doubt  on  the  extent  to  which  the  Equality  Act  covers  access  to  self-employment, 
although  Pimlico  Plumbers  v  Smith  [2018]  UKSC  29  confirmed  that  those  who  have  a 
contract personally to do work are covered by the Equality Act 2010. As a result of this 
lack of clarity, domestic legislation may well fail to comply with the directives.  

Discrimination in the provision of goods and services, housing, education, social protection 
including social security and healthcare, social advantages and the performance of public 
functions is also now prohibited across all the equality grounds except age in both GB and 
Northern Ireland. Having said this, UK law does not contain any clear definition of social 
advantage, and whether the existing legislation is adequate to implement EU law will not 
be  known  until  a  body  of  case  law  has  been  developed,  both  within  the  UK  and  in  the 
European Court of Justice. The Equality Act 2010 contains provisions providing protection 
against  age  discrimination  for  GB  in  relation  to  the  provision  of  goods  and  services, 
healthcare, social advantages and the performance of public functions. These do not apply 
to children under the age of 18.  

5. Enforcing the law 

Individuals who consider they have been discriminated against can bring legal proceedings, 
with  cases  involving  allegations  of  employment-related  discrimination  going  to  the 
employment  tribunals  (industrial  tribunal  or  Fair  Employment  Tribunal  in  NI)  and 
complaints concerning any other unlawful discrimination going to the civil courts.  

The main remedy available is damages, which are calculated as in civil proceedings for tort 
(‘delict’  in  Scotland).  Injunctive  relief  can  also  be  obtained.  Compensation  awards  vary 
across  the  grounds  and  from  context  to  context.  Remedies  are  in  general  reasonably 
dissuasive, although the inability of courts and tribunals to order wider remedial measures 
to be adopted by discriminating organisations is a real problem.  

Some support is available from trade unions, specialised NGOs and the equality bodies for 
individuals in bringing a discrimination claim. There are no restrictions on any organisation 
offering  support  to  complainants  in  discrimination  cases,  however,  such  organisations 
cannot usually initiate a complaint. The only exception to this position is that the Equality 
Commissions can bring a case where instructions to discriminate or unlawful advertising is 
concerned.  

Anti-discrimination cases are quite common and attract considerable publicity. However, 
complainants  can  suffer  from  a  lack  of  available  skilled  advice,  assistance  and 
representation in discrimination cases. The Equality and Human Rights Commission (EHRC) 
and the Equality Commission for Northern Ireland (ECNI) provide assistance in a limited 
number  of  cases  where  the  law  needs  clarification.  In  addition,  the  Government-
commissioned Equality Advisory and Support Service runs a helpline that offers help and 
advice on issues relating to equality across England, Scotland and Wales. 

2   See Section 2.1.3 below. 

8 

 
 
 
 
 
 
 
 
 
 
All  of  the  relevant  UK  legislation  makes  provision  for  a  shift  of  the  burden  of  proof  in 
relation to each of the grounds of discrimination and to all of the activities considered to 
be within the scope of the directives. 

Implementation of the Public Sector Equality Duty which applies to all grounds results in 
many national and local programmes targeting specific groups, such as support for Gypsy, 
Roma  and  Travellers  accessing  education  and  healthcare;  and  support  to  help  disabled 
people access employment.  

6. Equality bodies 

There is a single Equality and Human Rights Commission (EHRC) in GB which can support 
complainants in legal proceedings, has enforcement powers of its own and also has powers 
to  promote  and  encourage  respect  for  equality  of  opportunity  through  research,  public 
comments  and  other  methods.  There  is  a  separate  Equality  Commission  for  Northern 
Ireland,  which  has  similar  functions  (and,  in  places,  greater  powers  relating  to  positive 
action)  to  those  of  the  EHRC,  while  in  Scotland  there  is  also  a  Scottish  Human  Rights 
Commission with which the EHRC shares its human rights remit. 

7. Key issues 

• 

• 
• 

• 

• 

• 

• 
• 

• 

• 

The wide scope for schools to discriminate against teachers on the ground of religion 
remains a concern. 
It is unclear whether UK law adequately protects self-employed workers.  
The abolition, in 2017, of tribunal fees for discrimination cases has removed a serious 
barrier  to  accessing  justice  from  2013-2017,  but  the  number  of  claims  has  not 
recovered to pre-2013 levels.  
Although  legal  aid  is  available  for  advice  and  representation  in  certain  types  of 
discrimination case, it does not cover representation in the Employment Tribunal. As 
a result access to justice remains a serious concern. 
The hostile environment created around the employment and letting of premises to 
those with irregular migration status has some negative impacts on non-UK nationals 
living and working in the UK, as organisations are discouraged through the threat of 
criminal sanctions from providing services to, or employing, anyone who they suspect 
may  not  have  full  status.  This  can  result  in  indirect  discrimination  on  grounds  of 
ethnicity or nationality. 
The ‘Windrush generation’ (Commonwealth citizens who settled in the UK before 1 
January 1973), who often lack documentation  to confirm their immigration status, 
can have difficulty accessing benefits and services, which can amount to indirect race 
discrimination.  
Significant inequalities are faced by Gypsy, Roma and Traveller communities. 
The uneven protection afforded to different protected characteristics with respect to 
hate  speech  and  hate  crime  is  under  review  by  the  Law  Commission,  the  Scottish 
Parliament and the Northern Ireland Government. 
The  material  scope  of  the  Equality  Act  2010  extends  beyond  that  of  the  2000 
directives, to broadly comply with the proposed equal treatment directive.  
The positive duties imposed on public authorities by the Public Sector Equality Duty 
(Section 149 Equality Act 2010) in GB and Section 75 Northern Ireland Act 1998 (in 
NI) are perhaps the most interesting feature of UK discrimination law.  

9 

 
 
 
 
 
 
INTRODUCTION 

The national legal system 

The United Kingdom (UK) comprises England, Wales, Scotland and Northern Ireland (NI). 
Great Britain (GB) includes England, Wales and Scotland. The UK, which has three legal 
systems  (England  and  Wales,  Scotland  and  Northern  Ireland),  is  a  parliamentary 
democracy  with  neither  a  written  constitution  prescribing  separation  of  legislative, 
executive and judicial powers, nor an entrenched constitutional bill of rights.  

All UK-wide law-making powers are vested in the Westminster Parliament, which legislates 
through  both  primary  legislation  (Acts  of  Parliament)  and  secondary  laws  (Statutory 
Instruments). These laws are subsequently ‘interpreted’ by the courts to create a body of 
case  law  which  is  based  on  the  binding  rules  of  legal  precedent.  The  Westminster 
Parliament  can  only  legislate  in  the  areas  which  have  not  devolved  to  the  Scottish 
Parliament,  the  Welsh  Assembly  or  the  Northern  Ireland  Assembly.  However,  it  can 
legislate in those areas where one of those legislatures consents to legislation being passed 
on  its  behalf.  Of  importance  in  this  context  is  that  equalities  legislation  in  Scotland  and 
Wales is reserved to the Westminster Parliament - in other words it is only Westminster 
that can legislate in the area of equalities for England, Wales and Scotland. For Northern 
Ireland,  the  Northern  Ireland  Assembly  has  competence  to  legislate  in  the  area  of 
equalities. 

Section  2(2)  of  the  European  Communities  Act  1972  permits  the  transposition  of  EU 
legislation into UK legislation by regulations without the need for primary legislation.  

Anti-discrimination legislation in the UK is enforced mainly through the civil courts, with 
the exception of some minor provisions that provide for criminal sanctions. The relevant 
judicial systems in the three jurisdictions within the UK (England and Wales, Scotland and 
Northern Ireland) are similar but not identical. In each there are first instance tribunals in 
which all employment-related cases are heard and separate civil courts (county courts in 
NI and England and Wales, sheriff courts in Scotland) for other civil claims. The final civil 
appeal  court  for  all  three  jurisdictions  is  the  Supreme  Court  which  came  into  being  in 
October 2009, replacing the Appellate Committee of the House of Lords (and the Judicial 
Committee of the Privy Council). Non-employment cases are generally heard in the county 
courts or (in the case of some public law claims, the Administrative Court) with appeal to 
the Court of Appeal and Supreme Court. 

List of main legislation transposing and implementing the directives. 

GB 
● 

NI 
● 

The Equality Act 20103 (EqA): 
o 
o 

adopted 08.04.2010;  
grounds  covered:  sex  (incl.  gender  reassignment,  married/  civilly  partnered 
status/  pregnancy),  colour,  nationality  (including  citizenship),  ethnic  origins, 
national origins, disability, sexual orientation, religion or belief, age; 
material scope: employment (broadly defined to include occupation, vocational 
training etc.);  education; housing; provision  of goods, facilities and services; 
membership organisations; functions of public authorities. 

o 

The Disability Discrimination Act 19954 (DDA): 
o 
o 

adopted 08.11.1995;  
grounds covered: disability; 

3   Equality Act 2010, 08.04.2010 (EqA), available at: www.legislation.gov.uk/ukpga/2010/15/contents. 
4   Disability Discrimination Act 1995 (DDA), 08.11.1995, available at: 

www.legislation.gov.uk/ukpga/1995/50/contents. 

10 

 
 
 
 
 
 
 
 
 
 
● 

● 

● 

● 

● 

o 

material scope: employment (broadly defined to include occupation, vocational 
training etc.);  education; housing; provision  of goods, facilities and services; 
membership organisations; functions of public authorities. 

The Race Relations (NI) Order 19975 (RRO): 
o 
o 

adopted 19.03.1997;  
grounds covered: race, colour, nationality (including citizenship), ethnic origins, 
national origins and belonging to the Irish Traveller community; 
material scope: employment (broadly defined to include occupation, vocational 
training etc.);  education; housing; provision  of goods, facilities and services; 
membership organisations; functions of public authorities. 

o 

The Fair Employment and Treatment Order 19986 (FETO): 
o 
o 
o 

adopted 16.12.1998;  
grounds covered: religion/ belief/ political belief; 
material scope: employment (broadly defined to include occupation, vocational 
training etc.);  education; housing; provision  of goods, facilities and services; 
functions of public authorities. 

The Employment Equality (Sexual Orientation) Regulations (NI) 2003 (SOR 2003): 
o 
o 
o 

adopted 01.12.2003;  
grounds covered: sexual orientation; 
material scope: employment (broadly defined to include occupation, vocational 
training etc.). 

The Employment Equality (Sexual Orientation) Regulations (NI) 2006 (SOR 2006):  
o 
o 
o 

adopted 8.11.2006; 
grounds covered: sexual orientation; 
material scope: education; housing; provision of goods, facilities and services; 
functions of public authorities. 

The Employment Equality (Age) Regulations (NI) 2006 (Age Regs): 
o 
o 
o 

adopted 14.06.2006;  
grounds covered: age; 
material scope: employment (broadly defined to include occupation, vocational 
training etc.). 

5   Race Relations (Northern Ireland) Order 1997 (RRO), 19.03.1997, available at: 

www.legislation.gov.uk/nisi/1997/869/contents. 

6   Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO), 16.12.1998, available at: 

www.legislation.gov.uk/nisi/1998/3162/contents. 

11 

 
 
 
1 

GENERAL LEGAL FRAMEWORK  

Constitutional provisions on protection against discrimination and the promotion of equality  

The UK constitution is unwritten and so by definition contains no articles dealing with non-
discrimination.  

The Human Rights Act 1998,7 however, partially incorporates the European Convention on 
Human  Rights  (ECHR)  into  domestic  law,  and  by  so  doing  gives  Article  14  ECHR  quasi-
constitutional force. Public authorities can only act contrary to that provision if required by 
primary law so to do, with a very strong interpretive obligation applying to the courts in 
their interpretation of such legislation, while the devolved Parliaments in Scotland, Wales 
and Northern Ireland may not pass legislation incompatible with the Convention nor may 
their governments act incompatibly with Convention rights. The provisions of the Human 
Rights Act cannot be enforced against private individuals (although they can be enforced 
against the state). 

7   Human Rights Act 1998, 09.11.1998, available at: www.legislation.gov.uk/ukpga/1998/42/contents. 

12 

 
 
 
 
 
 
2 

THE DEFINITION OF DISCRIMINATION  

2.1  Grounds of unlawful discrimination explicitly covered  

The  following  grounds  of  discrimination  are  explicitly  prohibited  in  the  main  legislation 
(listed in the Introduction section, the main legislation transposing and implementing the 
directives) transposing the two EU anti-discrimination directives:  

UK 
− 
− 
− 
− 
− 
− 
− 
− 
− 

sex (incl. gender reassignment, married/ civilly partnered status/ pregnancy) 
colour 
nationality (including citizenship) 
ethnic origins 
national origins 
disability 
sexual orientation 
religion or belief 
age 

NI (in addition to the grounds above) 
− 
− 
− 

race  
belonging to the Irish Traveller community 
political belief 

2.1.1  Definition of the grounds of unlawful discrimination within the directives 

a) 

Racial or ethnic origin 

Race 

The term ‘racial origin’ is not used in UK legislation. The RRO (art. 5(1)) (NI) provides that 
‘“racial  grounds”  means  any  of  the  following  grounds,  namely  colour,  race,  nationality 
(including citizenship), ethnic and national origins’.  

The EqA provides (Section 9) that ‘race’ includes colour, nationality and ethnic or national 
origin and that, ‘A racial group is a group of persons defined by reference to race; and a 
reference to a person’s racial group is a reference to a racial group into which the person 
falls’.  There  is  no  definition  in  statute  or  case  law  of  ‘racial  origin’;  since  the  first  Race 
Relations Act8 (RRA) in 1965 it has been clear that, as in Recital (6) of the Race Directive, 
the term has never been used to imply an acceptance of any theories regarding separate 
human races.  

Section 9 EqA, as amended, required the  Government to introduce secondary legislation 
to  make  caste  an  aspect  of  race,  thus  making  caste  discrimination  a  form  of  race 
discrimination. Following the Employment Appeal Tribunal case in which it was accepted 
that  discrimination  on  the  basis  of  caste  could  fall  within  discrimination  on  the  basis  of 
ethnic origin,9 the Government decided in 2018 to repeal the amendment to the Equality 
Act  2010,  thereby  removing  the  obligation  to  introduce  specific  protection  for  caste 
discrimination.  

Nationality is protected as part of the protection against race discrimination under Section 
9  Equality  Act  2010.  ‘National  origins’  is  broader  than  citizenship  and  can  cover 

8   Race Relations Act 1965, 08.11.1995, available at: 

www.legislation.gov.uk/ukpga/1965/73/contents/enacted.  

9   Employment Appeal Tribunal, Chandhok v Tirkey [2015] IRLR 195 19.12.2014, available at: 

www.bailii.org/uk/cases/UKEAT/2014/0190_14_1912.html. 

13 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
discrimination  against  the  Scottish  or  English.  However,  immigration  status  does  not 
amount to nationality or race and is not protected under the Equality Act 2010.10 

Ethnic origin 

The Equality Act 2010 includes ‘ethnic or national origins’ as part of its definition of race 
under Section 9. The RRO (Article 5(1) (NI) also includes the concept of ethnic or national 
origins as part of its definition of race. The definition of ethnic origins was discussed in the 
landmark case Mandla and another v Dowell Lee,11 and summarised thus:  

‘For a group to constitute an ethnic group in the sense of the 1976 Act [precursor to 
the Equality Act 2010], it must…regard itself, and be regarded by others, as a distinct 
community  by  virtue  of  certain  characteristics.  Some  of  these  characteristics  are 
essential; others are not essential but one or more of them will commonly be found 
and  will  help  to  distinguish  the  group  from  the  surrounding  community.  The 
conditions which appear to me to be essential are these: (1) a long shared history, 
of  which  the  group  is  conscious  as  distinguishing  it  from  other  groups,  and  the 
memory of which it keeps alive; (2) a cultural tradition of its own, including family 
and social customs and manners, often but not necessarily associated with religious 
observance.  In  addition  to  those  two  essential  characteristics  the  following 
characteristics are, in my opinion, relevant; (3) either a common geographical origin, 
or descent from a small number of common ancestors; (4) a common language, not 
necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) 
a common religion, different from that of neighbouring groups or from the general 
community surrounding it; (7) being a minority or being an oppressed or a dominant 
group within a larger community….’12  

In Chandhok v Tirkey13 the Employment Appeal Tribunal accepted that discrimination on 
the basis of caste could fall within discrimination on the basis of ethnic origin. 

b) 

Religion and belief 

In  NI  FETO  provides  (Article  2)  that  ‘“religious  belief”  in  relation  to  discrimination  or 
harassment … includes any religion or similar philosophical belief’, further that ‘references 
to a person’s religious belief or political opinion include references to  

(1)  His supposed religious belief or political opinion; and 
(2)  The absence or supposed absence of any, or any particular, religious belief or political 

opinion.’  

In GB the EqA provides (Section 10) that: 

(1)  Religion means any religion and a reference to religion includes a reference to a lack 

of religion. 

(2)  Belief means any religious or philosophical belief and a reference to belief includes a 

reference to a lack of belief. 

‘Religion’  itself  is  not  defined.  The  Government  made  clear  in  Parliament,  in  introducing 
the  Employment  Equality  (Religion  or  Belief)  Regulations  2003  (by  which  religious 
discrimination  was  first  regulated),  that  it  expected  religion  or  belief  to  be  defined  in 

10   Supreme Court, Taiwo v Olaigbe; Onu v Akwiwu [2016] UKSC 31, available at: 
https://www.supremecourt.uk/cases/docs/uksc-2014-0105-judgment.pdf. 

11   House of Lords, Mandla v Dowell Lee [1983] 2 AC 548 24.03.1982, available at: 

www.bailii.org/uk/cases/UKHL/1982/7.html. 

12   Per Lord Fraser in Mandla v Dowell Lee. 
13   Chandhok v Tirkey, [2015] IRLR 195, available at: 

www.bailii.org/uk/cases/UKEAT/2014/0190_14_1912.html. 

14 

 
 
 
 
 
 
 
 
 
 
 
 
 
accordance  with  case  law  developed  under  Article  9  ECHR,  to  protect  both  the  forum 
internum  and  forum  externum.  The  UK  approach  to  defining  religion  and  belief  would 
appear to accord with definitions used in the CJEU in Achbita C-157/15.  

Courts and tribunals have adopted a very broad approach to what can constitute a ‘belief’: 
see  for  example  the  landmark  case  of  Grainger  v  Nicholson  in  which  the  Employment 
Appeal  Tribunal  (EAT)14  accepted  that  the  predecessor  to  the  EqA  protected  any  belief 
which (1) was genuinely held; (2) was a belief and not an opinion or viewpoint based on 
the present state of information available; (3) concerned a weighty and substantial aspect 
of human life and behaviour; (4) attained a certain level of cogency, seriousness, cohesion 
and importance; and (5) was worthy of respect in a democratic society, not incompatible 
with human dignity and not in conflict with the fundamental rights of others.15 There the 
EAT accepted that the claimant’s belief in man-made climate change and the environment 
was capable of falling within the concept of ‘belief’ notwithstanding the fact that the belief 
was free-standing, rather than being part of a philosophy of life. The EAT did not accept 
that support for a political party would be protected by the Regulations, some limitation 
being required on the concept of ‘philosophical belief’ to which the Regulations restricted 
protected beliefs and suggested that racist or other beliefs would be unprotected.  

Subsequently,  tribunals  have  accepted  as  ‘philosophical  beliefs’  a  strongly  held  belief  in 
the sanctity of life, including opposition to  fox hunting and hare-coursing;16 and a belief 
that ‘public service broadcasting has the higher purpose of promoting cultural interchange 
and  social  cohesion’.17  Other  tribunals  have  ruled  that  a  belief  that  it  was  necessary  to 
show respect to those  who gave their lives by wearing a poppy was  not a philosophical 
belief because it lacked the ‘cogency, cohesion and importance’ required by Grainger.18  

In Arya v London Borough of Waltham Forest a tribunal rejected a claim for protection of 
anti-Semitic  views  on  the  basis  that,  although  genuinely  held,  ‘and  affect[ing  the 
claimant’s] way of life and his view of the world’ anti-Semitic (and racist) views were ‘not 
worthy  of  respect  in  a  democratic  society’  and  were  ‘incompatible  with  human  dignity’. 
They were, accordingly, not protected by the EqA.19 Although the definition of religion or 
belief is not entirely clear, the EHRC most recent review of the law on religion and belief 
discrimination  concluded  that  there  was  no  need  for  legislative  reform,  but  that  the 
definition of the protected characteristic of belief should be clarified through case law.20 

c) 

Disability 

The status protected by the EqA and, in NI, the DDA is that of being ‘a disabled person’, 
that is, ‘a person who has a physical or mental impairment which has a substantial and 
long-term adverse effect on [the] ability to carry out normal day-to-day activities’.21 ‘Long-
term’ means lasting or likely to last at least 12 months, or for the rest of the person’s life.22 

14   To which cases go on appeal from employment tribunals in Great Britain. 
15   Employment Appeal Tribunal [2010] IRLR 4, [2010] ICR 360 3.11.2009, available at: 

www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html. 

16   Employment Tribunal, Hashman v Milton Park (Dorset) Limited t/a Orchard Park, 31.01.2011, Case No. 

ET/3105555/2009, available at: https://uk.practicallaw.thomsonreuters.com/0-505-
1230?transitionType=Default&contextData=(sc.Default). 

17   Employment Tribunal, Maistry v BBC, 29.03.2011, Case No. ET/1313142/2010 [2011] EqLR 549, available 

at: employment.practicallaw.com/6-505-6183. 

18   Employment Tribunal, Lisk v Shield Guardian Co and others, 27.09.2011, Case No. 3300873/11 [2011] 

EqLR 1290, available at: employment.practicallaw.com/4-511-0992. 

19   Employment Tribunal 24.08.2013, Case No. 3200396/2011, [2013] EqLR 858. 
20   EHRC (2016) Religion or belief: Is the law working?, EHRC Research Report 2016 available at: 

https://www.equalityhumanrights.com/sites/default/files/religion-or-belief-report-december-2016.pdf. 
21   EqA s6, DDA s1(1). Note, however, the decision in Employment Appeal Tribunal, Attridge Law v Coleman 

(No.2), [2010] IRLR 10 30.10.2009, available at: 
www.bailii.org/uk/cases/UKEAT/2009/0071_09_3010.html, in which the EAT followed the decision of the 
CJEU in Coleman v Attridge Law Case C-303/06 and interpreted the DDA (now EqA) to apply to 
discrimination by association. 

22   DDA Sch 1, para 2. 

15 

 
 
 
 
 
 
 
 
This  definition  covers  physical,  psychosocial  and  intellectual  disabilities.  Under  DDA  (for 
NI) an impairment is only taken to affect a person’s ability to carry out normal day-to-day 
activities if it affects their mobility, manual dexterity, physical co-ordination, continence, 
ability  to  lift,  carry  or  otherwise  move  everyday  objects,  speech,  hearing  or  eyesight, 
memory  or ability to concentrate, learn or understand, or their perception of the  risk  of 
physical danger.23 This list of capabilities has been removed in GB by the EqA, though the 
requirement for long-term substantial impairment of the ability to carry out normal day-
to-day activities remains.24  

The EqA covers progressive conditions from the time of the diagnosis of the condition, even 
while the person is able to carry out normal day-to-day activities if this is likely to result in 
an impairment at a later date. In addition to the above situations, the EqA and DDA cover 
a number of special conditions, including asymptomatic conditions, controlled or corrected 
conditions and severe disfigurement. A person who has cancer, HIV infection or multiple 
sclerosis  is  deemed  to  meet  the  definition  of  disability,  effectively  from  the  point  of 
diagnosis.  

The UK definitions differ from that adopted by the CJEU in Joined Cases C-335/11 and C-
337/11 Skouboe Werge and Ring in that they refer to hindrance in ‘day-to-day activities’ 
as  distinct  from  ‘professional  activities’  and  do  not  make  specific  reference  to  the 
‘interaction with various barriers’. The UK approach, accordingly, appears less consistent 
with the  social model  of disability than is that  of the CJEU.  However,  there are  signs  of 
some change in interpretation to align with the CJEU approach.25 In Banaszczyk v Booker26 
the EAT interpreted day-to-day activity to include day-to-day activities of professional life, 
in accordance with the approach in Ring.27  

d) 

Age 

Neither the EqA nor the NI Age Regs define the term  ‘age’, leaving it open to the courts 
and tribunals to define if necessary. Both provisions do define the term  ‘age group’ as a 
‘group of persons defined by reference to age, whether by reference to a particular age or 
a range of ages’: this may be important in indirect age discrimination claims. 

e) 

Sexual orientation 

The EqA defines ‘sexual orientation’ as ‘a sexual orientation towards - (a) persons of the 
same sex, (b) persons of the opposite sex, or (c) persons of either sex’. The SORs 2003 
define ‘sexual orientation’ as ‘a sexual orientation towards - (a) persons of the same sex, 
(b) persons of the opposite sex, or (c) persons of the same sex and of the opposite sex’.28 
The definition of sexual orientation relates to the manifestation of that orientation in the 
form of sexual behaviour as well as to sexuality as such.29 

2.1.2  Multiple discrimination 

In the UK, multiple discrimination is not explicitly prohibited in the law.  

Express provision is made in the EqA which provides (Section 14) for  the recognition of 
‘dual  discrimination’  in  cases  (involving  direct  discrimination  alone)  where  ‘because  of  a 

23   DDA Sch 1, para 4(1). 
24   Equality Act 2010 Schedule 1. 
25   Paterson v Commissioner of Police for the Metropolis, Employment Appeal Tribunal [2007] ICR 1522, [2007] 

IRLR 763 23.07.2007, available at: www.bailii.org/uk/cases/UKEAT/2007/0635_06_2307.html. 

26   Employment Appeal Tribunal [2016] UKEAT/0132/15/RN 01.02.2016, available at: 

www.bailii.org/uk/cases/UKEAT/2016/0132_15_0102.html. 

27   Court of Justice of the EU, Joined Cases C-335/11 and C-337/11 Skouboe Werge and Ring 11.04.2013. 
28   Section 12(1) and Reg 2(2) respectively. 
29   High Court, R (on the application of Amicus–MSF section) v Secretary of State for Trade and Industry 

[2004] EWHC 860 (Admin) [2007] ICR 1176. 

16 

 
 
 
 
 
 
 
 
 
 
 
combination  of  two  relevant  protected  characteristics,  A  treats  B  less  favourably  than  A 
treats or would treat a person who does not share either of those characteristics’. However, 
the provision has not come into force. 

In the UK, the following case law deals with multiple discrimination, suggesting that judicial 
interpretation  might  allow  for  multiple  discrimination  cases  to  be  heard.  In  Hewage  v 
Grampian Health Board the Supreme Court accepted that a tribunal had been entitled to 
find  that  the  claimant  had  been  discriminated  against  on  grounds  of  sex  and  race.  The 
Supreme Court did not take issue with the fact that the claimant argued both race and sex 
discrimination and that the tribunal did not identify separate facts to support findings of 
race discrimination and sex discrimination.30 

There is no record of the combined nature of the discrimination having any impact on the 
level  of  the  EUR 18 333  (GBP 15 000)  damages  awarded  to  the  claimant  in  Ministry  of 
Defence v DeBique in respect of injury to her feelings.31 

2.1.3  Assumed and associated discrimination 

a)  Discrimination by assumption 

In GB discrimination based on a perception or assumption of a person’s characteristics, is 
prohibited in national law:  

− 

− 

Section 13 EqA, which defines direct discrimination, refers to discrimination ‘because 
of’  a  protected  characteristic  which  is  accepted  as  being  sufficiently  wide  to 
encompass  discrimination  based  on  perceived  or  assumed  characteristics.  This  is 
confirmed in the Explanatory Notes to the EqA (paragraph 59).32  
In Chief Constable of Norfolk v Coffey33 the claimant was rejected for a position due 
to  the  perception  that  her  impaired  hearing  made  her  unsuitable,  despite  the  fact 
that  she  had  passed  the  hearing  functionality  test.  The  Court  of  Appeal  upheld  a 
finding of perception discrimination.  

In  NI  discrimination  based  on  perception  or  assumption  of  a  person’s  race,  sexual 
orientation, religious belief or political opinion or age is prohibited in national law:  

− 

− 

The definition of direct discrimination in the RRO (Article 3), FETO (Article 3) and SOR 
2003  (Regulation  3),  of  less  favourable  treatment  on  the  relevant  grounds,  is 
understood to extend to discrimination on the basis of assumed characteristics; 
The Age Regs expressly provide (Regulation 3) that the prohibition on less favourable 
treatment  on  grounds  of  the  claimant’s  age  (this  being  the  definition  of  direct 
discrimination adopted by the Regs) ‘includes [the claimant]’s apparent age’.  

In NI discrimination based on perception or assumption of a person’s disability  does not 
appear to be prohibited in national law: 

− 

The  definition  of  direct  discrimination  in  the  DDA  (Section  3A:  less  favourable 
treatment  on  grounds  of  the  claimant’s  disability)  is  not  generally  understood  to 
extend to discrimination on the basis of assumed characteristics. 

30   Supreme Court [2012] UKSC 37, [2012] IRLR 870, [2012] EqLR 884 25.07.2012, available at: 

https://www.supremecourt.uk/cases/uksc-2011-0050.html. 

31   Employment Appeal Tribunal, DeBique v Ministry of Defence (No.2) 15.09.2011, UKEAT/0075/11/SM, 

available at: www.bailii.org/uk/cases/UKEAT/2011/0075 _11_1509.html. 

32   https://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/2/2/1. 
33   Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061, 21.06.19 available at: 

https://www.bailii.org/ew/cases/EWCA/Civ/2019/1061.html. 

17 

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
b)  Discrimination by association 

In the GB, discrimination based on association with persons with particular characteristics, 
is prohibited in national law. National law is in line with the judgments in Cases C-303/06 
Coleman v Attridge Law and Steve Law and C-83/14 CHEZ Razpredelenie Bulgaria AD v 
Komisia za zashtita ot diskriminatsia. 

Section 13 EqA, which defines direct discrimination, refers to discrimination ‘because of’ a 
protected  characteristic  which  is  accepted  as  being  sufficiently  wide  to  encompass 
discrimination based on association with persons with particular characteristics.  

Discrimination by association only applies to direct discrimination. It does not extend to a 
duty to make reasonable adjustments. In Hainsworth v Ministry of Defence34 the Court of 
Appeal  rejected  a  claim  that  the  employer  had  discriminated  against  the  claimant  by 
refusing  to  make  reasonable  adjustments  to  meet  the  disability-related  needs  of  her 
daughter. 

In NI discrimination based on association with persons with particular characteristics is not 
always prohibited in national law:  

− 

− 

The definition of direct discrimination in the RRO (Article 3), FETO (Article 3) and SOR 
2003  (Regulation  3),  of  less  favourable  treatment  on  the  relevant  grounds,  is 
understood  to  extend  to  discrimination  based  on  association  with  persons  with 
particular characteristics; 
The definition of direct discrimination in the DDA and the Age Regs (Section 3A and 
Regulation  3  respectively:  less  favourable  treatment  on  grounds  of  the  claimant’s 
disability or age) does not on its face appear to extend to discrimination based on 
association with persons with particular characteristics but the Northern Irish courts 
are virtually certain to follow the approach of the EAT in EBR Attridge Law LLP & Anor 
v Coleman (No.2)35 and interpret the relevant provisions of the DDA and NI Age Regs 
to cover discrimination by association. 

Courts  and  equality  bodies  determine,  by  cross  examination  in  the  court  proceedings, 
whether the discriminatory treatment was based on the victim’s association with a third 
person or group.  

2.2  Direct discrimination (Article 2(2)(a)) 

a) 

Prohibition and definition of direct discrimination 

In the UK, direct discrimination is prohibited in national law. It is defined.  

GB  
● 

Less favourable treatment ‘because of a protected characteristic’: Section 13 EqA: 
o 

Section 23 EqA imposes an explicitly comparative approach except in the case 
of  pregnancy  (where  the  requirement  is  for  unfavourable  rather  than  less 
favourable treatment);36 
In the case of age it is capable of justification; 
In the case of disability it protects only those with disabilities (or who associate 
with people with disabilities);37 

o 
o 

34   Court of Appeal [2014] EWCA Civ 763, available at: 

https://www.bailii.org/ew/cases/EWCA/Civ/2014/763.html. 

35   Employment Appeal Tribunal [2010] IRLR 10 30.10.2009, available at: 

www.bailii.org/uk/cases/UKEAT/2009/0071_09_3010.html. 

36   A hypothetical comparator is acceptable. 
37   And in GB, those assumed to be disabled – this would require judicial interpretation based on the 

requirements of EU law. 

18 

 
 
 
 
 
 
 
 
 
 
 
 
 
o 
o 

In the case of race it explicitly applies to segregation; 
In the case of disability the comparison is between the disabled person and a 
real or hypothetical comparator with ‘the same abilities’. 

NI  
● 

● 

The  RRO,  FETO  SOR  2003  and  SOR  2006  (Article  3,  Article  3  Regulation  3  and 
Regulation  3)  define  direct  discrimination  as  less  favourable  treatment  ‘on  [the 
relevant] grounds’. The legal provisions are materially identical to the EqA (above);38 
The Age Regs and the DDA (Regulation 3 and Section 3A) define direct discrimination 
as less favourable treatment on grounds of the claimant’s age or disability. 

b) 

Justification for direct discrimination 

The  only  form  of  direct  discrimination  which  can  be  justified  in  the  UK  is  age 
discrimination.39  

The 2018 Supreme Court decision in Lee v Ashers & Ors40 decided that a baker could not 
refuse to provide a cake bearing a message supporting gay marriage to a claimant because 
he was a gay man, as  this would be directly discriminatory. However, on the facts, this 
had not been the reason for the refusal to supply the cake. Instead, the refusal was because 
of  the  political  opinion  expressed  on  the  cake.  The  Supreme  Court  held  that  whilst  the 
refusal may have been because of political opinion, a ground of discrimination protected in 
FETO,  the  baker  could  not  be  compelled  to  supply  the  cake,  unless  the  resulting 
interference with the baker’s freedom of expression could be justified. This reasoning was 
the result of reading FETO to comply with the requirements in the Human Rights Act 1998 
to interpret domestic legislation as far as possible to comply with the European Convention 
on Human Rights.  

In  reaching  this  conclusion,  the  Supreme  Court  was  arguably  accepting  that  direct 
discrimination  under  FETO  may  be  capable  of  justification  where  necessary  to  uphold 
freedom of expression or freedom of religion, although it did not directly state that freedom 
of religion is a ground of justification for direct discrimination. Although the protection for 
political  opinion  in  the  provision  of  goods  and  services  contained  in  FETO  is  beyond  the 
scope of the 2000 directives, the reasoning could potentially be applied to other grounds 
and other contexts which are covered by the directives, allowing for the possibility of direct 
discrimination being justified where necessary to uphold human rights protections.  

2.3  Indirect discrimination (Article 2(2)(b)) 

a) 

Prohibition and definition of indirect discrimination 

In the UK, indirect discrimination is prohibited in national law. It is defined. 

Section 19 EqA defines indirect discrimination as the application to the claimant of a 
provision, criterion or practice which is also applied to others but which places the 
claimant,  and  places  or  would  place  others  with  whom  s/he  shares  a  protected 
characteristic,  at  a  particular  disadvantage  by  comparison  with  those  who  do  not 
share the characteristic, and which cannot be shown to be a proportionate means of 
achieving a legitimate aim. 

GB  
● 

NI  

38   The equivalents of s23 EqA are RRO 3(1c); FETO art. 3(3); and reg.3(2) SOR.  
39   Section 13(2) Equality Act 2010. 
40   Supreme Court [2018] UKSC 49 18.10.2018, available at: www.bailii.org/uk/cases/UKSC/2018/49.html. 

See further in Section 12.2 below.  

19 

 
 
 
 
 
 
 
 
 
 
 
 
● 

● 

● 

Materially identical definitions apply in Northern Ireland to age and sexual orientation 
and,  insofar  as  it  overlaps  with  EU  law,  race  and  religion/  belief  discrimination 
(respectively Regulation 3 each of the NI Age Regs and SOR 2003, Article 3 each of 
RRO and FETO); 
Indirect disability discrimination is not regulated in NI (although duties of reasonable 
adjustment apply);  
Discrimination  other  than  that  falling  within  EU  law  (nationality  or  colour-related 
discrimination,  for  example,  or  race  discrimination  in  the  coercive  function  of  the 
state,  or  religion/  belief  discrimination  other  than  in  the  context  of  employment/ 
occupation) falls to be considered according to an older definition which (RRO, Article 
3(1)(b))  defines  indirect  discrimination  as  the  application  to  the  claimant  of  a 
requirement  or  condition  which  is  also  applied  to  others,  but  with  which  a 
considerably  smaller  proportion  of  the  claimant’s  racial  or  religious  group  than  of 
others can comply, with which the claimant cannot comply, to his or her detriment, 
and which cannot be shown to be justifiable irrespective of the race/ religion or belief 
of the claimant.  

b) 

Justification test for indirect discrimination 

The test for indirect discrimination falling within EU law is whether the application of the 
provision, criterion or practice is shown (by the person(s) applying it) to be a proportionate 
means  of  achieving  a  legitimate  aim  (Section  19  RRA,  Regulation  3  each  of  the  NI  Age 
Regs  and  SOR  2003  and  Article  3  each  of  RRO  and  FETO).  This  is  compatible  with  the 
directives.  

2.3.1  Statistical evidence 

a) 

Legal framework 

In the UK, there is legislation regulating the collection of personal data. The Data Protection 
Act  2018  implements  and  complies  with  the  EU  General  Data  Protection  Regulation.  It 
limits the processing of sensitive data. In accordance with the Act and the GDPR, sensitive 
processing  includes  the  processing  of  personal  data  revealing  racial  or  ethnic  origin, 
political  opinions,  religious  or  philosophical  beliefs,  data  concerning  health  and  data 
concerning an individual’s sexual orientation. However, exceptions apply to the  collection 
and  processing  of  sensitive  data  for  the  monitoring  of  equality  between  persons  with 
different  racial  or  ethnic  origins,  different  religious  or  philosophical  beliefs,  differing 
physical  or  mental  health  conditions  or  between  persons  of  different  sexual  orientation. 
Processing does not meet this condition if it is carried out for the purposes of measures or 
decisions with respect to the particular data subject unless the data subject has consented. 
Processing also does not meet this condition if it is likely to cause substantial damage or 
distress  to  the  data  subject.  An  individual  can  give  notice  in  writing  to  the  controller 
requiring the controller to cease processing his or her data and the processor must cease 
processing within a reasonable period.41 

The collection and publication of statistics by public authorities is sometimes required by 
law. In Northern Ireland FETO imposes a positive duty on employers with a workforce of 
ten  employees  or  more  to  take  measures  to  ensure  a  fair  proportion  of  Catholics  and 
Protestants in their workforce. Such employers must monitor the ‘community composition’ 
of their workforce annually and review their recruitment, promotion and training practices 
every three years. This obligation falls within Article 6(1)(c) of GDPR (processing necessary 
for compliance with legal obligations).  

In  GB,  there  is  a  general  statutory  duty  upon  public  authorities  to  eliminate  unlawful 
discrimination  related  to  sex,  gender  reassignment,  pregnancy  and  maternity,  race, 

41   Data Protection Act 2018, date of adoption: 23.05.2018; entry into force: 23.05.2018. Schedule 1 part 2 

para 8. 

20 

 
 
 
 
 
 
 
 
 
disability,  age,  religion  or  belief  and  sexual  orientation  and  to  promote  equality  of 
opportunity related to each of these  ‘protected characteristics’ (Section 149 EqA). In NI, 
Section 75 of the Northern Ireland Act 1998 imposes a duty on specified public authorities 
to have ‘due regard to the need to promote equality of opportunity’ across all the equality 
grounds.  This  can  require  the  collection  of  data,  including  data  on  religious  belief,  age, 
disability and the other equality grounds.  

As part of giving effect to these duties, public authorities are often required to monitor the 
composition  of  their  workforce  and  the  relevant  pools  of  service  users.  How  authorities 
collect  statistics  and  data  may  vary  from  ground  to  ground,  however.  These  statutory 
obligations  fall  within  Article  6(1)  of  GDPR  which  allows  for  processing  necessary  for 
compliance with legal obligations and processing necessary for the performance of a task 
carried out in the public interest or processing necessary for the purposes of the legitimate 
interests of the data controller. 

Statistics are regularly used in both the public and private sectors to design positive action 
schemes  (within  the  limits  of  the  law  applying  in  the  UK).  The  positive  duties  outlined 
above  require  the  collection  of  data  and  its  use  to  formulate  positive  action  planning. 
Private bodies also are increasingly using data to develop positive action on a voluntary 
basis.  

The  data  collected  is  taken  from  equal  opportunities  monitoring,  which  is  commonplace 
now  in  the  UK:  this  involves  the  use  of  voluntary  monitoring  mechanisms,  whereby  job 
applicants  and  individuals  applying  for  promotion,  service  users  and  others  provide 
anonymous  data  on  their  ethnic  background,  gender,  disabled  status,  age  and  other 
indicators. This information is scrutinised and conclusions drawn about where, when and 
how positive action needs to be taken.  

Both  the  EHRC  and  ECNI  use  statistical  evidence  in  their  research,  promotional  and 
enforcement activity, in particular evidence obtained from public sector bodies under the 
positive equality duties (and from private sector bodies under the NI FETO duty). 

In  the  UK  statistical  evidence  may  be  admitted  under  national  law  in  order  to  establish 
indirect discrimination. In West Midlands Passenger Transport Executive v Singh, the Court 
of  Appeal  set  the  legal  precedent  with  guidance  as  to  the  use  of  statistics  in  race 
discrimination  cases.42  The  use  of  statistical  evidence  follows  the  general  admissibility 
requirements for such evidence. Statistical evidence is not conclusive and definite proof by 
itself but, in the absence of a satisfactory explanation of clear-cut statistical disadvantage, 
an inference of discrimination can be established depending upon the circumstances.  

b) 

Practice 

In  the  UK,  statistical  evidence  is  used  in  practice  in  order  to  establish  indirect 
discrimination.  The  use  of  statistical  evidence  is  common,  especially  in  race  and  gender 
cases where its utility may be greatest. There are no real obstacles to the use of statistical 
evidence in the  courts,  if the  evidence is probative and relevant. For  example, in  Essop 
and  others  v  Home  Office  (UK  Border  Agency)43  potential  indirect  discrimination  was 
evidenced through the use of statistics showing that the success rate of Black and Minority 
Ethnic  (BME)  candidates  in  a  core  skills  assessment  (CSA)  was  40.3 %  that  of  White 
candidates and that of candidates aged 35 or over was 37.4 % that of younger candidates. 
The Supreme Court ruled the claimants did not have to point to the reason why the CSA 
had  disadvantaged  them  as  BME  and  older  candidates.  It  was  sufficient  to  show  that  a 
provision,  criterion  or  practice  causes  the  disadvantage  suffered  by  the  group  and  the 
individual claimant. 

42   Court of Appeal [1988] ICR 614 18.03.1988.  
43   Supreme Court [2017] UKSC 27 5.04.2017 www.bailii.org/uk/cases/UKSC/2017/27.html. 

21 

 
 
 
 
 
 
 
 
 
 
However,  of  course,  in  practice  there can be circumstances where lawyers  or applicants 
face difficulty in finding relevant statistical evidence. 

2.4  Harassment (Article 2(3)) 

a) 

Prohibition and definition of harassment 

In the UK, harassment is prohibited in national law. It is defined. The full material scope 
of  the  directives  is  covered.  Harassment  is  defined  (so  far  as  relevant)  as  unwanted 
conduct related to a relevant protected characteristic the purpose or effect of which is to 
violate the claimant’s dignity, or create an intimidating, hostile, degrading, humiliating or 
offensive  environment  for  him  or  her.44  Section  26  EqA,  which  applies  in  GB,  further 
provides  that,  in  deciding  whether  conduct  has  the  effect  of  creating  an  intimidating, 
hostile, degrading, humiliating or offensive environment for the claimant, account must be 
taken of: 

− 
− 
− 

the perception of the claimant;  
the other circumstances of the case;  
whether it is reasonable for the conduct to have that effect. 

A similar definition of harassment applies in Northern Ireland under the RRO, DDA, FETO, 
SOR 2003, SOR 2006 and Age Regs,45 insofar as the conduct falls within the scope of EU 
law. NI legislation uses the term ‘on grounds of’ rather than ‘related to’ but in English v 
Thomas Sanderson Blinds Ltd the Court of Appeal accepted that the subjection of a man 
who  was  not  gay,  and  who  was  known  by  his  harassers  not  to  be  gay,  to  homophobic 
abuse, amounted to harassment ‘on the grounds of’ the applicant’s sexual orientation.46  

In  the  UK,  harassment  does  not  explicitly  constitute  a  form  of  discrimination,  but  it  is 
regulated  as  a  separate  form  of  wrong  in  respect  of  which  the  same  rules  concerning 
burden of proof apply and the same remedies are available.47 

b) 

Scope of liability for harassment 

Where harassment is perpetrated by an employee, in the UK both the employer and the 
employee  will  usually  be  liable,  vicarious  liability  being  established  under  all  domestic 
provisions subject to an ‘all reasonable steps’ defence available to the employer. Domestic 
legislation also renders offending employees liable for having assisted their employer.48  

Until its amendment in 2013 the EqA provided (Section 40(2) & (3)) that employers are 
liable  for  harassment  by  third  parties  where  they  ‘know[]  that  [the  worker]  has  been 
harassed in the course of [his or her] employment on at least two other occasions by a 
third party … whether the third party is the same or a different person on each occasion’, 
and ‘failed to take such steps as would have been reasonably practicable to prevent the 
third party from doing so’. This provision was repealed in 2013 as the Coalition Government 
regarded  it  as  an  unnecessary  ‘burden  on  business’.  Therefore,  liability  is  no  longer 
imposed  on  employers  for  harassment  by  third  parties.  Although  it  had  been  suggested 
that employers  could remain liable under direct discrimination provisions of the Equality 

44   Equality Act 2010 (EqA), S26; Race Relations (NI) Order 1997 (RRO), Art 3; Disability Discrimination Act 
1995 (DDA), s3B; Fair Employment and Treatment Order 1998 (FETO), Art 3A; Employment Equality 
(Sexual Orientation) Regulations (NI) 2003 (SOR 2003), reg 6; and Employment Equality (Age) Regulations 
(NI) 2006 (Age Regs), reg 5. 

45   Art 3, s3B, Art 3A, reg 6, reg 3 and reg 5 of the RRO, DDA, FETO, SOR 2003, SOR 2006 and Age Regs 

respectively. 

46   Court of Appeal [2008] EWCA Civ 1421 [2009] IRLR 206 19.12.2008. See also Employment Appeal, Austin v 

Samuel Grant (North East) Ltd, [2012], Case no 25039956/11, EqLR 617 29.03.2012. 

47   S26 EqA, Arts 32 &33 RRO, ss57&58 DDA, Arts 35 & 36 FETO, regs 26 & 27 Age Regs and reg 5 SOR 2003. 
It is the author’s view that, for this reason, no question of (non)compatibility with the directives arises. 

48   Ss109 & 110 EqA, Art 3 RRO, s3B DDA, Art 3A FETO, reg 6 Age Regs and regs 25 & 25 SOR 2003. 

22 

 
 
 
 
 
 
 
 
 
 
 
 
Act 2010, it was confirmed that this is not the case in Unite the Union v Nailard.49 Here the 
Court  of  Appeal  confirmed  that  the  Equality  Act  does  not  cover  liability  for  third  party 
harassment and that the employer can only be liable if their actions and omissions in not 
addressing the third party harassment were themselves motivated by the claimant’s sex.  

2.5  Instructions to discriminate (Article 2(4)) 

a) 

Prohibition of instructions to discriminate 

In the UK, instructions to discriminate are prohibited in national law and the material scope 
of the directives is covered. Instructions are not defined. Section 111 EqA, which applies 
in  GB,  prohibits  the  causing  or  inducement  of  discrimination  as  well  as  the  issue  of 
instructions to discriminate. The position in NI is similar.  

In the UK, instructions do not explicitly constitute a form of discrimination, though issuing 
instructions to A to discriminate against B may amount to direct discrimination against A 
(the courts having recognised that such an instruction may involve a detriment to A and 
that  the  detriment  is  ‘on  grounds  of’  or  ‘because  of’  the  relevant  characteristic: 
Weathersfield Ltd v Sargent).50  

b) 

Scope of liability for instructions to discriminate 

In  the  UK,  the  instructor  is  liable  for  issuing  the  instruction  to  discriminate  and  the 
discriminator is liable if s/he acts on the instruction.51  

2.6  Reasonable  accommodation  duties  (Article  2(2)(b)(ii)  and  Article  5 

Directive 2000/78) 

a) 

Implementation  of  the  duty  to  provide  reasonable  accommodation  for  people  with 
disabilities in the area of employment 

In the UK, the duty on employers to provide reasonable accommodation for people with 
disabilities is included in the law and is defined, although it is termed the duty to make 
reasonable 
reasonable  adjustments.  The 
accommodation are used interchangeably in this report. It is defined in GB by Section 20 
EqA and in NI by Section 4A DDA.  

reasonable  adjustment  and 

terms 

The  duty  applies  in  UK  (in  the  context  of  employment/occupation)  where  ‘a  provision, 
criterion or practice’ or ‘a physical feature’ or the lack of an ‘auxiliary aid’ ‘puts a disabled 
person at a substantial disadvantage … in comparison with persons who are not disabled’. 
The  duty  is  a  duty  ‘to  take  such  steps  as  it  is  reasonable  to  have  to  take’  to  avoid  the 
disadvantage or to provide the auxiliary aid.52 

The  term  ‘reasonable’  is  not  defined  in  legislation,  although  case  law  provides  some 
guidance; and cases suggest that an adjustment will not be ‘reasonable’ if it amounts to a 
disproportionate burden on the employer. It is likely that a failure to comply with general 
guidelines (such as those provided by the Equality and Human Rights  Commission53 and 
the  Advisory,  Conciliation  and  Arbitration  Service),54  accessibility  or  building  regulations 
would  be  relevant  and  that  it  would  be  difficult  for  an  employer  to  argue  that  a 
disproportionate  burden  exists  if  they  have  not  complied  with  relevant  regulations  and 
guidelines. The EHRC guidance provides examples such as allowing a disabled person to 

49   Unite the Union v Nailard [2018] EWCA Civ 1203 24.05.2018, available at: 

https://www.bailii.org/ew/cases/EWCA/Civ/2018/1203.html. 

50   Court of Appeal, Weathersfield Limited t/a Van & Truck Rentals v Sargent [1998] EWCA Civ 1938. 
51   Ss109 & 110 EqA, Art 3 RRO, s3B DDA, Art 3A FETO, reg 6 Age Regs and regs 25 & 25 SOR 2003. 
52   S20 EqA, s4A DDA. 
53   https://www.equalityhumanrights.com/en/multipage-guide/reasonable-adjustments-practice. 
54   https://www.acas.org.uk/reasonable-adjustments. 

23 

 
 
 
 
 
 
 
 
 
 
 
 
 
work flexible hours to enable them to have additional breaks to overcome fatigue arising 
from their disability; and providing special  equipment, such as an adapted keyboard for 
someone with arthritis. 

b) 

Practice and case law 

The DDA, which was the predecessor to the EqA and which still applies in NI, includes at 
Section 18B(2) some examples of steps an employer may need to take in order to comply 
with a duty to make reasonable adjustments; these include making physical adjustments 
to premises; allocating some duties to another employee; transferring the person to fill an 
existing vacancy; being flexible with regard to  working hours  or place  of work; allowing 
absence  from  work  for  rehabilitation,  treatment  and  assessment;  giving  or  arranging 
special  training;  acquiring  or  modifying  equipment;  modifying  instructions  or  reference 
manuals;  modifying  procedures  for  testing  or  assessment;  providing  a  reader  or 
interpreter; and providing supervision or other support.  

The EqA contains no examples of the types of step an employer may take to comply with 
the reasonable adjustment duty. However, some guidance is available in the case law and 
some recent examples are provided below.  

In  United  First  Partners  Research  v  Carreras55  the  term  ‘provision,  criterion  or  practice’ 
(PCP)  in  the  definition  of  reasonable  adjustments  did  not  mean  that  there  must  be  a 
‘requirement’ imposed, but only a strong form of request. Where a claimant was expected 
to work long hours by a pattern of repeated requests, creating pressure on him to agree, 
this could amount to a PCP. 

In the UK case law is used to provide guidance on how to interpret when an accommodation 
or adjustment is reasonable. In the landmark case of  Archibald v Fife CC56 the House of 
Lords  decided  that  the  obligation  to  make  reasonable  accommodation  could  require 
employers  not  to  apply  the  standard  procedures  for  selecting  individuals  to  fill  posts  in 
order to accommodate a disabled person. In 2016 in G4S Cash Solutions (UK) Ltd v Powell57 
the Employment Appeal Tribunal confirmed that the duty of reasonable adjustment could 
include  continued  payment  at  a  higher  rate  for  work  usually  paid  at  a  lower  rate.  The 
Claimant had become disabled through a back injury and was moved to a new role which 
was usually paid at a lower rate. His pay was kept the same level. The Employment Appeal 
Tribunal  found  that  a  reasonable  adjustment  would  be  to  continue  to  pay  at  the  higher 
rate.  In  2017,  in  Home  Office  (UKVI)  v  Kuranchie,58  the  Employment  Appeal  Tribunal 
considered that an employer had failed to make reasonable adjustments for an employee’s 
dyslexia and dyspraxia by failing to reduce her workload, even though she had not herself 
suggested such an adjustment at the time. 

These  cases  confirm  that  the  duty  of  reasonable  accommodation  allows  for  disabled 
workers to be treated more favourably than other workers, and in the view of the author 
the interpretation of the duty is in line with EU law.  

The EqA does not use or define the concept of ‘disproportionate burden’ but the question 
of  whether  any  particular  adjustment  is  ‘reasonable’  involves,  in  essence,  the 
determination of this question.  

The EqA contains no direct guidance on how to determine reasonableness, relying only on 
case law. However, NI is governed by the DDA which sets out a list of factors which should 

55   Court of Appeal, [2018] EWCA Civ 323. See Section 12.2 below. 
56   House of Lords [2004] UKHL 32, [2004] ICR 954; [2004] IRLR 651 01.07.2004, available at: 

www.bailii.org/uk/cases/UKHL/2004/32.html. 

57   Employment Appeal Tribunal Appeal No. UKEAT/0243/15/RN. 

26.08.2016, available at: www.bailii.org/uk/cases/UKEAT/2016/0243_15_2608.html. 

58   Employment Appeal Tribunal [2017] UKEAT/0202/16/BA 19.01.2017, available at: 

www.bailii.org/uk/cases/UKEAT/2017/0202_16_1901.html. 

24 

 
 
 
 
 
 
 
 
 
 
be considered in determining whether in the particular circumstances it is reasonable for 
the employer to have to make a particular adjustment. The factors  Section 18B(1) DDA 
lists can be summarised in general as follows: 

− 
− 
− 

− 
− 
− 
− 

Effectiveness in preventing the particular disadvantage; 
Practicability; 
Financial  and  other  costs  which  would  be  incurred  and  extent  of  any  disruption 
caused; 
The employer’s financial or other resources; 
The availability to the employer of financial or other assistance; 
Increased risk to the health and safety of any person; 
The nature of the employer’s activities and size of its undertaking. 

c) 

Definition of disability and non-discrimination protection 

The definition of disability for the purposes of claiming a reasonable accommodation does 
not differ from the definition for claiming protection  from discrimination in general (EqA 
Section 6, DDA Section 1(1), see Section 2.1.1 above). 

d) 

Failure to meet the duty of reasonable accommodation for people with disabilities 

In the UK, failure to meet the duty of reasonable accommodation in employment for people 
with disabilities counts as discrimination. It is a free-standing form of discrimination. There 
is  no  justification  defence  for  a  failure  to  make  reasonable  adjustment  in  GB  or,  in  the 
context  of  employment/  occupation,  in  NI.  However,  although  there  is  no  formal 
justification defence, where a failure to adjust can be justified it will be unlikely that the 
adjustment  will  be  ‘reasonable’;  moreover,  an  adjustment  will  not  be  ‘reasonable’  if  it 
amounts to a disproportionate burden on the employer. In NI a failure to make reasonable 
accommodation may be justified in relation to a matter falling outside the scope of Directive 
2000/78/EC.59 

The  potential  sanction  for  failure  to  meet  the  duty  is  financial  compensation  and/or  a 
recommendation  that  the  employer  takes  particular  steps  to  obviate  the  impact  of  the 
discrimination on the individual. Under Section 136 Equality Act and Section 17 (1C) DDA, 
once  a  claimant  has  established  sufficient  facts,  which  in  the  absence  of  any  other 
explanation  point  to  a  breach  of  the  Act  having  occurred,  the  burden  shifts  to  the 
respondent to show that he or she did not breach the provisions of the Act. This provision 
applies to discrimination under the Equality Act, including discrimination by failure to make 
a reasonable adjustment.60  

e)  Duties  to  provide  reasonable  accommodation  in  areas  other  than  employment  for 

people with disabilities 

In  the  UK,  there  is  a  legal  duty  to  provide  reasonable  accommodation  for  people  with 
disabilities  outside  the  employment  field.  The  duties  of  reasonable  adjustment  found  in 
Section  20  EqA  and  (in  NI)  Section  4A  DDA  apply  not  only  to  employment  but  also  to 
education,  housing,  membership  organisations,  the  provision  of  goods,  facilities  and 
services  and  the  functions  of  public  authorities.  As  the  duty  is  owed  to  disabled  people 
generally, it is, in relation to the duty outside of employment, an anticipatory duty. This 
means  that  public  authorities  need  to  think  about  and  make  reasonable  adjustments  in 
advance,  and  not  as  individual  cases  arise.  As  above,  there  is  no  definition  of 
‘disproportionate burden’ in the EqA or the DDA but the question whether an adjustment 

59   DDA ss20, 28B, 28S. The types of interest that may justify a failure to adjust are likely to be the same as 
those which would make an adjustment unreasonable, so there is no practical difference in terms of the 
obligation or limits on the obligation. 

60   Though in NI only in relation to discrimination in the context of employment/ occupation – s136 EqA, 

s17(1C) DDA. 

25 

 
 
 
 
 
 
 
 
 
 
is ‘reasonable’ requires an objective analysis by the court/ tribunal. What is a reasonable 
adjustment in any particular case is a fact-sensitive question but what is reasonable in the 
case of an existing employee is likely to be different from what is reasonable in relation 
(for example) to a casual shopper. 

f) 

Duties to provide reasonable accommodation in respect of other grounds 

In the UK, there is no legal duty to provide reasonable accommodation in respect of other 
grounds in the public and/or the private sector.  

In  some  cases,  however,  a  failure  to  make  reasonable  accommodation  of  the  needs  of 
minority groups (Gypsies/ Travellers, for example, or religious minorities) may amount to 
a breach of the prohibition on indirect discrimination. In Bull & Anor v Hall & Anor it was 
suggested  that  the  scope  for  reasonable  accommodation  could  be  part  of  the 
proportionality assessment in an indirect discrimination claim,61 at least in some cases.62 
It  is  possible  that  the  same  approach  might  be  taken  in  relation  to  a  failure  to  make 
reasonable accommodation for other protected characteristics.  

61   Equality Act s.19; Art 3 RRO; Art 3 FETO; Reg 3 Age Regs; Reg 3 SOR 2003. 
62   See, for example, Supreme Court, Bull & Anor v Hall & Anor [2013] UKSC 73, 27.11.2013, available at: 

www.bailii.org/uk/cases/UKSC/2013/73.html, at para 47.  

26 

 
 
 
 
 
 
3 

PERSONAL AND MATERIAL SCOPE  

3.1  Personal scope 

3.1.1  EU  and  non-EU  nationals  (Recital  13  and  Article  3(2),  Directive  2000/43 

and Recital 12 and Article 3(2), Directive 2000/78) 

In  the  UK,  there  are  no  residence  or  citizenship/nationality  requirements  for  protection 
under the relevant national laws transposing the directives.63 

The protection of the directives applies to people on grounds of nationality, but does not 
cover  irregular  migration  status.  Discrimination  against  irregular  migrants  on  other 
grounds such as race would be covered.  

3.1.2  Natural and legal persons (Recital 16, Directive 2000/43) 

a) 

Protection against discrimination  

In the UK, the personal scope of anti-discrimination law generally covers legal and natural 
persons for the purpose of protection against discrimination. In relation to the Equality Act 
it  has  been  confirmed  that  companies  are  protected  as  legal  persons.64  For  NI  judicial 
interpretation would be required.   

In  the  case  of  disability  discrimination,  although  there  is  no  express  exclusion  of  legal 
persons from protection against disability discrimination, protection under the EqA and (in 
NI)  the  DDA  is  provided  to  ‘a  disabled  person’,  which,  on  the  basis  of  the  statutory 
definition, will always be a natural person.  

b) 

Liability for discrimination 

In the UK, the personal scope of anti-discrimination law covers all natural and legal persons 
for the purpose of liability for discrimination.  

There  has  never  been  any  doubt  that  the  discriminator,  as  employer,  provider  of  goods 
and  services,  provider  of  education  or  training,  etc.  may  be  a  natural  or  a  legal  person 
though it is not spelled out explicitly in the legislation (and would not be expected to be 
expressly provided). 

3.1.3  Private and public sector including public bodies (Article 3(1)) 

a) 

Protection against discrimination 

In the UK, the personal scope of national law covers the private and public sectors including 
public bodies for the purpose of protection against discrimination. There is no relevant legal 
distinction between the two, so the legislation applies to both. National law complies with 
the directives in this regard. 

b) 

Liability for discrimination 

In  the  UK,  the  personal  scope  of  anti-discrimination  law  covers  the  private  and  public 
sectors including public bodies for the purpose of liability for discrimination. 

63   Hounga v Allen and another [2014] UKSC 47 confirms that protection against discrimination covers those 

with irregular or undocumented migration status.  

64   Employment Appeal Tribunal, EAD Solicitors LLP and Ors v Abrams UKEAT/0054/15/DM, 05.06.2015, 

available at: www.bailii.org/uk/cases/UKEAT/2015/0054_15_0506.html. 

27 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
3.2  Material scope 

3.2.1  Employment, self-employment and occupation  

In the UK, national legislation applies to all sectors of private and public employment, self-
employment and occupation, including contract work, partners, military service and those 
holding statutory office, for the five grounds, with the exceptions listed below: 

a) 

b) 

c) 

d) 

UK anti-discrimination legislation covers some, but not all, forms of self-employment. 
In the landmark case of Jivraj v Hashwani the Supreme Court ruled that arbitrators 
were  not  ‘employed’  for  the  purposes  of  the  anti-discrimination  provisions65  and, 
more significantly, that the prohibition of employment  ‘under a contract personally 
to  do  work’  did  not  cover  independent  providers  of  services  who  were  not  in  a 
relationship of subordination with the person who received the services. The extent 
to  which  domestic  law  protects  self-employed  people  against  discrimination  is 
uncertain  following  Jivraj  except  where  (as  in  the  case  of  contract  workers,  police 
officers,  partners  in  firms,  barristers  and  advocates)  such  people  are  expressly 
covered by the legislation. However, other workers who are not employees but who 
have a contract personally to do work are covered by the Equality Act 2010. This was 
confirmed  by  the  Supreme  Court  in  2018  in  Pimlico  Plumbers  v  Smith,  where  a 
plumbing and heating engineer was able to make a discrimination claim even though 
his contractual status was unclear, his contract containing some terms that suggested 
employment  status  and  some  which  suggested  self-employed  status.  This  entitled 
the  Employment  Tribunal  to  conclude  that  the  claimant  was  protected  under  the 
Equality Act 2010.66 
Employment includes employment in the armed forces in the UK but the prohibitions 
on age and disability discrimination in employment and occupation (Sch.9, paragraph 
4(3) EqA, and equivalent provisions in the DDA and Age Regulations in NI (Section 
64(7) and reg 50(4) respectively) ‘do not apply to service in the armed forces’.  
Certain  other  forms  of  occupation,  such  as  occupation  in  a  voluntary  capacity,  fall 
outside the anti-discrimination legislation with the effect that the material scope of 
UK law may not fully reflect that of the directives in every respect.67 
Anti-discrimination legislation prohibits discrimination on grounds of nationality, but 
does not cover irregular migration status. Under Sections 34 and 35 Immigration Act 
2016 it is illegal to work while disqualified by reason of immigration status and illegal 
to employ a person who is so disqualified. Irregular migration status is not protected 
by the directives. Moreover, it does not amount to discrimination on grounds of race 68 
and so any discrimination on the basis of immigration status does not amount to non-
compliance  with  the  directives.  However,  the  threat  of  serious  penalties  for  non-
compliance means that employers may be discouraged from employing anyone who 
they  suspect  may  not  have  full  status  to  work  and  this  can  result  in  indirect 
discrimination on grounds of ethnicity or nationality. 

65   Supreme Court [2011] UKSC 40, [2012] 1 All ER 629, [2011] IRLR 827, 27.07.2011, available at: 

https://www.supremecourt.uk/cases/uksc-2010-0158.html. 

66   Equality Act 2010, S 83 (2). Pimlico Plumbers Ltd and another v Smith [2018] UKSC 29, available at: 

https://www.bailii.org/uk/cases/UKSC/2018/29.html. See Section 12.2 where the case is discussed further.  
67   Supreme Court, X v Mid-Sussex Citizens Advice Bureau [2013] UKSC 59, [2013] IRLR 146, [2013] ICR 249, 

12.12.2012, available at: www.bailii.org/uk/cases/UKSC/2012/59.html. 

68   Supreme Court, Taiwo v Olaigbe; Onu v Akwiwu [2016] UKSC 31, available at: 
https://www.supremecourt.uk/cases/docs/uksc-2014-0105-judgment.pdf. 

28 

 
 
 
 
 
3.2.2  Conditions for access to employment, to self-employment or to occupation, 
including  selection  criteria,  recruitment  conditions  and  promotion, 
whatever  the  branch  of  activity  and  at  all  levels  of  the  professional 
hierarchy (Article 3(1)(a))  

In the UK, national legislation69 prohibits discrimination in relation to conditions for access 
to  employment,  to  self-employment  or  to  occupation,  including  selection  criteria, 
recruitment conditions and promotion, whatever the branch of activity and at all levels of 
the professional hierarchy for the five grounds  and in both private and public sectors as 
described in the directives, with the exceptions listed in 3.2.1 above. 

3.2.3  Employment and working conditions, including pay and dismissals (Article 

3(1)(c)) 

In the UK, national legislation prohibits discrimination in working conditions, including pay 
and dismissals, for all five grounds and for both private and public employment.70 

3.2.4  Access  to  all  types  and  all  levels  of  vocational  guidance,  vocational 
training,  advanced  vocational  training  and  retraining,  including  practical 
work experience (Article 3(1)(b)) 

In  the  UK,  national  legislation  prohibits  discrimination  in  vocational  training  outside  the 
employment  relationship,  such  as  adult  lifelong  learning  courses  or  vocational  training 
provided by technical schools or universities.71  

3.2.5  Membership  of,  and  involvement  in,  an  organisation  of  workers  or 
employers,  or  any  organisation  whose  members  carry  on  a  particular 
profession,  including  the  benefits  provided  for  by  such  organisations 
(Article 3(1)(d)) 

In the UK, national legislation prohibits discrimination in  relation to membership of, and 
involvement in, workers’ or employers’ organisations as formulated in the directives for all 
five grounds and for both private and public employment.72 

3.2.6  Social protection, including social security and healthcare (Article 3(1)(e) 

Directive 2000/43) 

In the UK, national legislation prohibits discrimination in social protection, including social 
security and healthcare as formulated in the Racial Equality Directive.73  

Although ‘social protection’ is not defined in UK law the EqA prohibits discrimination on all 
the grounds by public or private sector organisations in the provision of goods, facilities 
and services to the public or a section of the public. It also covers all functions of public 
authorities, which would include any publicly provided social protection as well as  social 
security  and  publicly  provided  healthcare  and  the  provision  of  social  housing  (see  also 

69   Equality Act 2010 (EqA), ss39-56, 58-59; Disability Discrimination Act 1995 (DDA), ss4-12, 14A-14D, 15A-

15C; Race Relations (NI) Order 1997 (RRO), Arts 6-7, 9, 11-12, 15-17, 26; Fair Employment and Treatment 
Order 1998 (FETO), Arts 19-24A, 26, 32; Employment Equality (Sexual Orientation) Regulations (NI) 2003 
(SOR), regs 6-7, 9. 12-16, 20-21; Employment Equality (Age) Regulations (NI) 2006 (Age Regs), regs 7-8, 
10, 13-18, 22-23. 

70   EqA ss39-52, 61-63; DDA ss4-12, 15A-15C, 17-18; RRO Arts 6-7, 9, 11-12, 17, 26; FETO Arts 19-24A, 

25A, 26, 32; SOR 2003 regs 6-7, 9, 11-16; Age Regs reg 7-8, 10, 13-18. 

71   EqA ss53-54, 90-97; DDA ss14A-14D; RRO Arts 14-15, 18; FETO Arts 24-25; SOR 2003 regs 18-22; Age 

Regs 20-24. 

72   EqA s57; DDA ss13-14; RRO Art 13; FETO Art 23; SOR 2003 regs 17; Age Regs reg 19. 
73   EqA s29; DDA s29; RRO Arts 20, 20A; FETO Art 28; SOR 2006 regs 5,12. 

29 

 
 
 
 
 
 
 
 
 
 
 
 
 
Section  3.2.10).  There  are  extensive  exceptions  in  the  case  of  the  prohibition  on  age 
discrimination which does not in this context protect those under 18.74 

In Northern Ireland, the RRO75 prohibits discrimination in the functions of public authorities 
that consist of the provision of any form of social security, healthcare and any other form 
of  social  protection.  The  DDA  prohibits  discrimination  in  access  to  goods,  facilities  and 
services  provided  to  the  public  or  a  section  of  the  public,  which  would  be  expected  to 
include healthcare, and prohibits discrimination on the grounds of disability in the exercise 
of public functions by public authorities, which encompasses the administration of publicly 
provided forms of social protection, including healthcare, as well as social security.76 FETO 
prohibits  discrimination  on  grounds  of  religious  belief  or  political  opinion  in  provision  by 
public  or  private  sector  organisations  of  goods,  facilities  and  services  to  the  public  or  a 
section  of  the  public.77  Healthcare  would  be  included,  but  it  is  unlikely  that  all  forms  of 
social protection and social security including inequality in levels of state benefits would be 
wholly within FETO. The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 
2006  (SOR  2006)  prohibit  discrimination  on  the  ground  of  sexual  orientation  in  the 
performance of public functions, again covering social protection including healthcare and 
social security.78 Age discrimination is not regulated in NI outside the scope of Directive 
2000/78/EC. 

The  various  positive  duties  imposed  upon  British  and  NI  public  authorities  discussed  at 
2.3.1 above require public bodies to pay due regard to the need to eliminate discrimination 
and promote equality of opportunity in the performance of public functions, which would 
presumably include the provision of social protection.  

a) 

Article 3(3) exception (Directive 2000/78) 

Although the exception could be relied on, to the best of the author’s knowledge this does 
not cause problems. It should be noted that in Northern Ireland age discrimination in this 
context is not regulated.79  

3.2.7  Social advantages (Article 3(1)(f) Directive 2000/43) 

In the UK, national legislation prohibits discrimination in social advantages as formulated 
in  the  Racial  Equality  Directive  though  judicial  interpretation  is  required  as  none  of  the 
legislation makes explicit reference to social advantages.80  

The EqA, which covers all five grounds in GB, prohibits discrimination in the provision by 
public  or  private  sector  organisations  of  goods,  facilities  and  services  to  the  public  or  a 
section of the public. It also covers all functions of public authorities, which would include 
much of what might be regarded as ‘social advantages’. There are exceptions in the case 
of the prohibition on age discrimination which does not in this context protect those under 
18.81 

In Northern Ireland, the RRO82 prohibits discrimination by public authorities in providing 
any form of social advantage (Article 20A). The DDA prohibits discrimination in access to 
goods, facilities and services provided to the public or a section of the public, which would 
be expected to include healthcare, and prohibits discrimination on the grounds of disability 

74   EqA S28 (1)(a). 
75   RRO Art 20A.  
76   DDA Ss19, 21B. 
77   FETO Art 28. 
78   SOR 2006 Regs 5, 12. 
79   EqA s29; DDA ss29, 59; RRO Arts 20, 20A & 40; FETO Arts 28, 78; SOR 2006 regs 5,12 & 49. 
80   EqA s29; DDA ss19, 21B; RRO 20, 20A; FETO Art 28; SOR 2006 regs 5,12. 
81   EqA S28 (1)(a). 
82   Article 20A RRO.  

30 

 
 
 
 
 
 
 
 
 
 
in the exercise of public functions by public authorities, which would include much of what 
might be regarded as ‘social advantages’.  

FETO prohibits discrimination on grounds of religious belief or political opinion in provision 
by public or private sector organisations of goods, facilities and services to the public or a 
section  of  the  public  and  the  SOR  2006  prohibit  discrimination  on  the  ground  of  sexual 
orientation in the performance of public functions. Both should catch at least some areas 
of  ‘social  advantages’.  Age  discrimination  is  not  regulated  in  NI  outside  the  scope  of 
Directive 2000/78/EC. 

The various positive duties imposed upon GB and NI public authorities referred to at 2.3.1 
above require public bodies to pay due regard to the need to eliminate discrimination and 
promote  equality  of  opportunity  in  the  performance  of  public  functions,  which  would 
presumably include the provision of social advantages. UK law does not, however, contain 
any clear definition of social advantage, and whether the existing legislation is adequate 
to implement EU law will not be known until a body of case law has been developed, both 
within the UK and in the CJEU. 

3.2.8  Education (Article 3(1)(g) Directive 2000/43) 

In  the  UK,  national  legislation  prohibits  discrimination  in  education  as  formulated  in  the 
Racial Equality Directive.83  

Both the EqA and (in NI) the RRO prohibit discrimination and segregation across their scope 
of application, so segregation in schools between people of different racial or ethnic groups 
would  be  unlawful,  including  segregation  of  Traveller  or  Roma  children.  Despite  this, 
concerns persist as to the concentration of ethnic minority students in particular schools, 
which reflect wider issues of divided communities and social segregation,84 and at times a 
tendency for white families to avoid schools which are seen to contain few white pupils. 
Further,  state  funding  is  provided  for  schools  which  select  their  pupils  by  religious 
adherence,  which  has  implications  for  racial  diversity  in  intake.  While  various  initiatives 
exist at local level which attempt to deal with this problem, this produces at times a pattern 
of segregation: however, studies have shown that the national situation is complex and it 
is difficult to make generalisations in this area.85  

The EqA regulates discrimination on grounds of religion in education in GB but there is no 
equivalent provision in NI except in relation to further and higher education. The EqA does 
not prohibit harassment in education related to religion or belief, though such harassment 
will amount to direct discrimination where it amounts to less favourable treatment because 
of religion or belief.86 The EqA contains an extensive series of exceptions to prohibitions on 
religious discrimination in education designed to protect the status of public state-funded 
denominational schools and private schools with a particular religious ethos. None have as 
yet given rise to legal issues involving segregation. Segregation of Catholic and Protestant 
pupils in Northern Ireland has been a constant problem there for many decades, with large 
proportions of the two groups going to faith schools.  

The  EqA  and  the  SOR  2006  prohibit  discrimination  in  access  to  and  the  provision  of 
education on the grounds of sexual orientation in GB and NI respectively, subject to certain 
narrow  exceptions.  They  do  not  prohibit  harassment  in  education  related  to  sexual 

83   EqA ss84-99; DDA ss28A-31C; RRO Arts 18-20; FETO Art 27; SOR 2009 regs 9-12. 
84   See the study carried out by the iCoCo Foundation, School Dash and The Challenge UNDERSTANDING 

SCHOOL SEGREGATION IN ENGLAND: 2011 TO 2016available at: https://the-
challenge.org/uploads/documents/TCN-Understanding-School-Segregation-in-England-2011-to-2016.pdf. 
85   Department of Education (2006) Ethnicity and education, pp. 28-9; Runnymede Trust (2007), School choice 
and ethnic segregation. www.runnymedetrust.org/uploads/publications/pdfs/School%20ChoiceFINAL.pdf. 

86   The reason for the exception for harassment in education on grounds of religion and belief and sexual 

orientation was to avoid the situation where pupils and teachers may be prevented from explaining their 
point of view on matters of religion and belief and sexual orientation in order to avoid harassment claims.  

31 

 
 
 
 
 
 
 
 
 
orientation  or  gender  reassignment,  though  such  harassment  will  amount  to  direct 
discrimination where it amounts to less favourable treatment because of (or, in Northern 
Ireland, on grounds of) sexual orientation or gender reassignment.  

The  relevant  provisions  of  the  EqA  prohibit  age  discrimination  in  GB  in  the  provision  of 
goods  and  services  and  in  the  performance  of  public  functions  but  do  not  protect  those 
under 18 from age discrimination and the prohibition on age discrimination does not apply 
to schools in the performance of their education function. Age discrimination in education 
is not prohibited in NI. 

The  various  positive  duties  imposed  upon  public  authorities  in  GB  and  NI  referred  to  at 
2.3.1  above  require  public  bodies  to  take  active  steps  to  eliminate  discrimination  and 
promote equality of opportunity in the provision of education.  

a) 

Pupils with disabilities 

In the UK, the general approach to education for pupils with disabilities gives rise to some 
problems. In particular, problems relate to accessing and funding support. 

Disability discrimination in education is regulated in GB and NI by the EqA and the Special 
Educational  Needs  and  Disability  (Northern  Ireland)  Order  2005  respectively.87  Scotland 
has always had a separate  education system to England and  Wales, albeit that the EqA 
applies in Scotland. Duties of reasonable accommodation are imposed in relation to school 
pupils and in relation to further and higher education; and a variety of policy initiatives and 
legislative  provisions  are  intended  to  encourage  integrated  education  within  the 
educational mainstream for people with disabilities.  

Children with more severe special educational needs (SEN) have their needs documented 
and the educational resources required to meet them stipulated in an ‘education, health 
and care plan’ (EHCP), the child then being entitled as of right to the  required provision 
(funded by the state). The systems of education for children with SEN/ disabilities are fairly 
developed in the UK but funding is limited and has been impacted by government austerity 
measures.  It  is  often  not  easy  for  parents  to  negotiate  the  bureaucracy  involved;  large 
numbers of cases are rejected and only upheld on appeal, and the number of appeals is 
increasing.88 The number of successful appeals is over 85 %.89 The Local Government and 
Social Care Ombudsman has reported many failures to deal with children’s special needs, 
including  delays  in  assessment  and  failures  to  carry  out  annual  reviews.90  Cuts  to  local 
authority budgets have resulted in decreases in spending on support for disabled children 
in schools, although a legal case challenging government policy found that the funding was 
not discriminatory.91 Cuts to Disabled Students’ Allowances for higher education have also 
had an adverse impact on disabled students.92 

87   EqA ss84-99, The Special Educational Needs and Disability (Northern Ireland) Order 2005. 
88   See evidence submitted to Parliament’s Education Select Committee SEND inquiry: 

http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/education-
committee/special-educational-needs-and-disabilities/written/98819.html. 

89   For more information see: https://www.specialneedsjungle.com/what-costs-103-7-million-and-makes-

disabled-children-miserable/. 

90   Local Government and Social Care Ombudsman (2017) The 2017 focus report: learning lessons from 
complaints, available at: https://www.lgo.org.uk/make-a-complaint/fact-sheets/education/special-
educational-needs.  

91   See ‘Families fight government in court over chronic underfunding for special needs’, The guardian (2019) 
available at: https://www.theguardian.com/education/2019/jun/26/families-fight-government-in-court-
over-chronic-underfunding-for-special-needs?CMP=Share_AndroidApp_Gmail and ‘Families lose high court 
challenge’, The guardian (2019) available at: 
https://www.theguardian.com/education/2019/oct/07/families-lose-high-court-challenge-over-special-
needs-funding, https://www.theguardian.com/education/2018/nov/10/councils-face-crisis-special-needs-
education-funding. 

92   Cuts announced in 2014: https://www.gov.uk/government/speeches/higher-education-student-support-

changes-to-disabled-students-allowances-dsa. 

32 

 
 
 
 
 
 
 
 
 
 
b) 

Trends and patterns regarding Roma pupils 

In the UK, there are specific societal trends and/or patterns in education regarding Roma 
pupils, such as some social segregation resulting from the concentration of ethnic minority 
students in particular schools. Any resulting segregation is not directed at, nor limited to 
Roma.  

The Government’s Race Disparity Audit, first published in October 2017, found that pupils 
from Gypsy or Roma backgrounds and those from a Traveller or Irish Heritage background 
had the lowest attainment of all ethnic groups throughout their school years.93 Gypsy and 
Traveller children leave school at a much earlier age than children in other ethnic groups 
and are excluded from school at a higher rate. Additional funding provided to schools to 
improve the attainment of disadvantaged children (known as Pupil Premium) is often not 
available with respect to Roma children due to the fact that eligibility is based on welfare 
benefit  entitlements  to  which  many  Roma  children  are  not  entitled  due  to  their  migrant 
status;  even  where  eligible,  Pupil  Premium  is  allocated  on  the  basis  of  the  number  of 
children  present  in  school  on  a  given  census  date  in  June  each  year.  If  an  eligible  child 
arrives in the school after the date of the census there will be a significant delay until funds 
are made available to the school.94 As a result, some of the additional educational support 
that is available to other disadvantaged groups is not available to Roma children.  

Various  local  level  initiatives  exist  to  address  this  problem  and  most  local  authorities 
continue  to  provide  specialist  Traveller  Education  Support  Services  which  help  Traveller 
pupils and parents to access education and provide practical advice and support to schools 
enrolling  Traveller  pupils.  ‘Roma’  is  used  here  to  include  Gypsies/  Travellers/  Irish 
Travellers as well as Roma from Eastern and Central Europe.  

3.2.9  Access to and supply of goods and services that are available to the public 

(Article 3(1)(h) Directive 2000/43) 

In the UK, national legislation prohibits discrimination in access to and the supply of goods 
and services as formulated in the Racial Equality Directive. 

The EqA prohibits discrimination related to race, disability, religion, belief, age (other than 
in  the  case  of  those  aged  under  18)  and  sexual  orientation,  by  public  or  private  sector 
bodies in the provision of goods, facilities or services to the public or a section of the public 
in GB (Section 29). In NI the RRO (Article 21), DDA (Section 19), FETO (Article 28) and 
SOR 2006 (reg 5) prohibit discrimination in access to goods, facilities and services provided 
to the public or a section of the public on grounds of race, disability, religion/ belief and 
sexual orientation respectively.  

Failure to adapt goods or a service to meet the needs of a person with a disability is a form 
of discrimination.95  

a)  Distinction between goods and services available publicly or privately 

93   Cabinet Office, Race Disparity Audit: Summary findings from the Ethnicity Facts and Figures website, 

October 2017, available at: 
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/686071
/Revised_RDA_report_March_2018.pdf. 

94   House of Commons Women and Equalities Committee Seventh Report of Session 2017–19, Tackling 

inequalities faced by the Gypsy, Roma and Traveller communities, available at: 
   https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/360/360.pdf. 
95   Equality Act 2010, S 29 (7). 

33 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
In the UK, national law distinguishes between goods and services available to the public 
(e.g.  in  shops,  restaurants  and  banks)  and  those  only  available  privately  (e.g.  those 
restricted to members of a private association). 

There are separate provisions prohibiting discrimination by associations with 25 or more 
members because of race, disability, religion or belief, age (other than in the case of those 
aged under 18)  or sexual orientation against any member  or associate in access to any 
benefits, facilities or services in GB (EqA, Part 7) and, in NI, on grounds of race, sexual 
orientation  and  disability  (RRO  Article  25;  SOR  2006  Regulation  17,  DDA  Section  21F). 
Insofar  as  they  apply  to  disability  these  provisions  require  the  making  of  reasonable 
adjustments.  The  provisions  of  the  Equality  Act  do  not  apply  to  associations  with  fewer 
than 25 members.96  

The various positive duties imposed upon GB and NI public authorities referred to at 2.3.1 
above require public bodies to take active steps to eliminate discrimination and promote 
equality of opportunity in the provision of state services.  

3.2.10  Housing (Article 3(1)(h) Directive 2000/43) 

In the UK, national legislation prohibits discrimination in the area of housing as formulated 
in the Racial Equality Directive.97 The protection also covers disability, religion or belief and 
sexual orientation, but not age.  

The various positive duties imposed upon British and NI public authorities referred to at 
2.3.1  above  require  public  bodies  to  take  active  steps  to  eliminate  discrimination  and 
promote  equality of  opportunity in the provision of housing.  These duties may influence 
how  other  statutory  duties  are  performed  by  public  authorities,  such  as  their  duties  to 
provide housing for local populations.  

a) 

Trends and patterns regarding housing segregation for Roma 

In the UK there are trends and patterns of housing segregation and discrimination against 
the Roma.  

As  above,  ‘Roma’  here  is  taken  to  include  Gypsies/  Travellers  and  Irish  and  Scottish 
Travellers  who  have  been  resident  in  significant  numbers  in  the  UK  for  a  much  longer 
period  than  Eastern  and  Central  European  Roma.  One  of  the  issues  which  arises  in 
connection with Gypsies/ Travellers and Irish and Scottish Travellers is the preference of 
many to live in caravans rather than in fixed homes. Caravans need sites and may not be 
parked even on land owned by the owners of the caravans without appropriate planning 
permission. Such planning permission is very difficult to obtain in large areas of the country 
which are designated ‘green field’ sites. Thus, many Gypsies/ Travellers/ Irish Travellers 
can find themselves unable to park their own caravans on their own land.  

In July 2019, the total number of Traveller caravans in England was 23 125. This is 463 
more than the 22 662 reported in July 2018. Of these, 6 633 were on socially rented sites; 
13 410  were  on  privately  funded  sites;  2 047  were  unauthorised  developments  on  land 
owned by Travellers (a decrease from 2018); and 1 035 were unauthorised encampments 
on  land  not  owned  by  Travellers.  Overall,  the  July  2019  count  indicated  that  87  %  of 
Traveller caravans in England were on authorised land and that 13 % were on unauthorised 
land.98 

96   Equality Act 2010, S 107. 
97   EqA ss32-35; RRO Arts 22-24; FETO Arts 29-31; DDA ss22-24M; SOR 2006 regs 6-7.  
98   See Ministry of Housing, Communities and Local Government (2019), Count of Traveller caravans, England, 
July 2019, available at: https://www.gov.uk/government/statistics/traveller-caravan-count-july-2019. 

34 

 
 
 
 
 
 
 
 
 
 
 
 
Many privately-owned caravan sites are reluctant to accommodate Gypsies/ Travellers and 
Irish  and  Scottish  Travellers  and,  although  direct  refusals  based  on  ethnicity  would  be 
unlawful,  many  private  sites  do  not  offer  long-term  facilities  such  as  many  Gypsies/ 
Travellers and Irish Travellers require. The position as regards public authorities has varied 
over  time.  Prior  to  1996  local  authorities  in  England  and  Wales  had  a  statutory  duty  to 
provide caravan sites for Gypsies and Travellers under the Caravan Sites Act 1968.99 This 
was  removed  by  the  Criminal  Justice  and  Public  Order  Act  1994100  which  gave  local 
authorities and the police broad powers to evict Gypsies and Travellers from unauthorised 
sites. Even where Gypsies/ Travellers and Irish and Scottish Travellers can park on local 
authority  sites  in  England  and  Wales  they  do  not  have  security  of  tenure  and  can  be 
required  to  quit  with  four  weeks’  notice.  From  2017  to  2019  there  have  been  a  large 
number of injunctions prohibiting encampments, with the injunctions not identifying any 
named  defendants.101  These  injunctions  have  had  the  effect  of  forcing  the  Gypsy  and 
Traveller  community  out  of  those  boroughs  which  have  obtained  injunctions,  thereby 
imposing a greater strain on the resources of those boroughs or councils which have not 
yet applied for such an order.102 

Section 124 of the Housing and Planning Act 2016 revoked an obligation on local authorities 
in  England  to  carry  out  a  separate  accommodation  needs  assessment  for  Gypsies  and 
Travellers, although they still have a general duty to assess the housing needs of everyone 
in  their  area.  A  consultation  from  the  Ministry  of  Housing,  Communities  and  Local 
Government, the Home Office and the Ministry of Justice was announced in April 2018 to 
review the law and powers to deal with unauthorised caravan sites and developments in 
England. The Scottish Government published a set of standards for all landlords running 
Gypsy/ Traveller sites to comply with by June 2018. These are designed to bring the quality 
of accommodation on sites up to a minimum standard.103 

A report by the Traveller Movement in 2016, commissioned by the National Inclusion Health 
Board, looked at how the living conditions of Gypsies and Travellers lead to poor health.104 
It found that two-thirds of Gypsies and Travellers reported poor, bad or very bad health 
and  that  the  living  conditions  of  Gypsies  and  Travellers  significantly  contribute  to  their 
physical and mental health. The poor health of Gypsies and Travellers was reported to be 
made worse by their living environment and accommodation insecurity. 

99   Caravan Sites Act 1968, 26.06.1968, available at: www.legislation.gov.uk/ukpga/1968/52/contents. 
100  Criminal Justice and Public Order Act 1994, 03.11.1994, available at: 

www.legislation.gov.uk/ukpga/1994/33/contents. 

101  London Borough of Kingston Upon Thames v Persons Unknown [2019] EWHC 1903. 
102  In London Borough of Kingston Upon Thames v Persons Unknown [2020] EWCA Civ 12 such injunctions 

were ruled to be unlawful as borough-wide injunctions are inherently problematic, comprising a potential 
breach of both the European Convention on Human Rights and the Equality Act 2010. 

103  See report of the Equality and Human Rights Commission (2018), Is Britain fairer? The state of equality and 

human rights 2018 , London, available at: https://www.equalityhumanrights.com/en/publication-
download/britain-fairer-2018. 

104  Available at: https://www.gov.uk/government/publications/gypsy-and-traveller-health-accommodation-and-

living-environment. 

35 

 
 
 
 
 
 
4 

EXCEPTIONS 

4.1  Genuine and determining occupational requirements (Article 4) 

In  the  UK,  national  legislation  provides  an  exception  in  accordance  with  Article  4  for 
genuine and determining occupational requirements. The words ‘genuine and determining’, 
which are used in Article 4 Directive 2000/78/EC, were removed in the Equality Act 2010 
on the basis that the words are superfluous. The assumption is that the objective of such 
a requirement will not be legitimate or proportionate if it is not genuine or determining.  

In GB, the EqA applies a general occupational requirement defence across all the protected 
grounds (Schedule 9 paragraph 1). There are, in addition, broader exceptions applicable 
to  religious  organisations.  Schedule  9  paragraph  3  permits  organisations  with  an  ethos 
based on religion or belief to discriminate on grounds of religion or belief but not on other 
grounds. Schedule 9 paragraph 2 allows discrimination on grounds of sexual orientation, 
sex, marriage or civil partnership for where employment is for the purposes of an organised 
religion (discussed in 4.2 below). (A general justification defence also applies in respect of 
age discrimination.)  

In NI, the RRO (Article 8(2)) lists four types of jobs where being of a particular colour or 
nationality may be a genuine occupational qualification.105 In the case of race and ethnic 
and national origins, however, the RRO applies a new generic GOR defence for race, ethnic 
or national origins, which is the same as that which applies under the SOR 2003 and the 
Age  Regs  (i.e.,  whether  having  a  particular  protected  characteristic  is  a  genuine  and 
determining occupational requirement which it is proportionate to apply in the particular 
case).106 The DDA does not provide a GOR but FETO permits discrimination on grounds of 
religious belief in the recruitment of teachers (Article 71), police (Article 71A) and clergy 
(Article 70). In addition, Article 70(3) provides for an exception where the holding, or not 
holding, of a particular religious belief is an occupational requirement and the application 
of the requirement is a proportionate means of achieving a legitimate aim.  

4.2  Employers with an ethos based on religion or belief (Article 4(2) Directive 

2000/78) 

In the UK, national law provides an exception for employers with an ethos based on religion 
or belief. 

GB 
The EqA provides, in relation to religion or belief, an additional occupational requirement 
defence (Schedule 9, paragraph 3) where an employer has an ethos based on religion or 
belief and, having regard to that ethos and the nature and context of the job, being of a 
particular  religion  or  belief  is  an  occupational  requirement,  ‘the  application  of  the 
requirement  is  a  proportionate  means  of  achieving  a  legitimate  aim,  and  the  person  to 
whom  …  the  requirement  [is  applied]  does  not  meet  it  (or  [the  person  applying  it]  has 
reasonable grounds for not being satisfied that the person meets it)’.  

105  a) participation in a dramatic performance, b) participation as an artist’s or photographer’s model, c) 

working where food or drink is provided to the public in a particular setting where a person of a particular 
racial group is required for reasons of authenticity, and d) providing persons of a particular racial group with 
personal services promoting their welfare which can most effectively be provided by a person of that racial 
group. The only case law in this area makes it clear that these provisions are to be narrowly interpreted: in 
particular, Lambeth London Borough Council v Commission for Racial Equality [1990] ICR 768, [1990] IRLR 
231. 

106  Race Relations (NI) Order 1997 (RRO) Art 7A, Employment Equality (Sexual Orientation) Regulations (NI) 
2003 (SOR 2003) reg 8; Employment Equality (Age) Regulations (NI) 2006 (Age Regs) reg 9. RRO Art 8 
contains a narrower GOR and applies to colour and nationality, grounds not protected within the EU Race 
Directive.  

36 

 
 
 
 
 
 
 
 
 
 
 
The EqA does not replicate the wording of Article 4(2) that requires that the religious ethos 
exception need only be genuine, and not determining, in contrast to the general GOR which 
has  to  be  both  genuine  and  determining.  Instead,  the  EqA  says  that  in  assessing  the 
legitimacy and proportionality of the aim of an occupational requirement, regard must be 
to the ethos and the nature and context of the job. Given that the EqA must be interpreted 
to accord with Article 4, this difference in wording between the two instruments may not 
be  of  significance  in  practice.  However,  it  is  arguable  that  the  removal  of  these  terms, 
particularly  the  term  ‘determining’  from  the  face  of  the  domestic  legislation  has  hidden 
from view an important distinction between the two levels of occupational requirement.107 

The EqA’s prohibitions on discrimination related to religion or belief are made subject to 
Sections 58–60 of the School Standards and Framework Act 1998108 (Regulation 39), which 
permit voluntary aided schools (publicly maintained schools with a degree of independent 
management) with a religious character to discriminate in the recruitment of teachers and 
their  dismissal.  Specifically,  Section  60(5)  of  the  School  Standards  and  Framework  Act 
1998  permits  a  voluntary  aided  school  with  a  religious  character  to  have  regard  ‘in 
connection with the termination of the employment of any teacher at the school, to any 
conduct on his part which is incompatible with the precepts, or with the upholding of the 
tenets, of the [school’s specified] religion or religious denomination’. This exception applies 
only to teachers, according to Section 60(6).  

A similar provision exists for Scottish Catholic schools in Section 21(2A) of the Education 
Act (Scotland) 1980.109  

In addition, in voluntary controlled schools (also publicly maintained schools with a slightly 
different  management  system  from  voluntary  aided  schools)  religion  can  be  taken  into 
account in appointing the head teacher and regard may be had to his or her  ‘ability and 
fitness  to  preserve  and  develop  the  religious  character  of  the  school’.110  In  addition  the 
school can ‘reserve’ up to a fifth of its teaching staff who can be ‘selected for their fitness 
and competence’ to give religious education in accordance with the tenets of the faith of 
the school.111  

These provisions permit wide scope for discrimination in selection and dismissal, as schools 
are not required to demonstrate that the person’s religion or belief constitutes a genuine, 
legitimate  and  justified  occupational  requirement  for  the  job  in  question  (for  example 
teaching  mathematics).  By  taking  the  School  Standards  and  Framework  Act  and/or  the 
Education Act (Scotland) Act into account, the EqA may fail to comply with Article 4(2) and 
judicial interpretation may be required to ensure that direct effect is given to Article 4(2). 
However, there may be little room for judicial interpretation of the School Standards and 
Framework Act 1998 which is clear in its scope.  

The provisions of the School Standards and Framework Act do not provide an exception 
for  other  non-discrimination  provisions  of  the  Equality  Act  and  so  would  not  create  an 
exception  to  the  prohibition  on  direct  discrimination  on  grounds  of  sex  or  sexual 
orientation. In O’Neill v Governors of St Thomas More RCVA Upper School112 a teacher in 
a  Catholic  school  became  pregnant  and  was  dismissed  when  it  became  known  that  the 
father of the child was a priest. Her dismissal was found to be discriminatory on grounds 
of sex, because it was related to pregnancy. The employer’s argument that the reason for 
dismissal was not the pregnancy, but the failure to comply with religious standards, was 

107  There has not yet been case law on this issue to test whether the EqA will be construed in broader terms 

than Art. 4(2).  

108  United Kingdom, School Standards and Framework Act 1998 (SSFA), 24.07.1998, available at: 

www.legislation.gov.uk/ukpga/1998/31/contents. 

109  United Kingdom, Education Act (Scotland) 1980, 01.08.1980, available at: 

www.legislation.gov.uk/ukpga/1980/44. 

110  S 60 SSFA 1998, as amended by s 37 of the Education and Inspections Act 2006. 
111  S 58 SSFA 1998.  
112  [1996] IRLR 372. 

37 

 
 
 
 
 
 
 
 
not  accepted,  because  the  pregnancy  precipitated  and  permeated  the  decision  to 
dismiss.113 The requirement to comply with the tenets of the religion could, depending on 
the religion involved, give rise to a claim of indirect discrimination on grounds of sexual 
orientation. 

NI – Religious belief 
FETO  provides  exceptions  for  employment  as  a  clergyman  or  minister  of  a  religious 
denomination and discrimination  ‘where the  essential nature of the job requires it to be 
done  by  a  person  holding  or  not  holding  a  particular  religious  belief’  (which,  under  the 
FETO Regulations, would include any religion or similar philosophical belief).114 As pointed 
out  above  (4.2),  this  exception  is  considerably  wider  than  Article  4(1)  or  4(2)  of  the 
directive and judicial interpretation of the regulations will be required to ensure that direct 
effect is given to the directive. In addition, as discussed below, SOR (reg 8(3)) provides 
that,  in  relation  to  employment  by  an  organised  religion,  the  employer  does  not 
discriminate  by  applying  a  requirement  related  to  sexual  orientation  if  the  discriminator 
shows  that:  (1)  the  employment  is  for  the  purposes  of  an  organised  religion;  (2)  the 
requirement is applied to comply with the doctrines of the religion or to avoid conflicting 
with  the  strongly  held  religious  convictions  of  a  significant  number  of  the  religion’s 
followers.  

− 

Conflicts between rights of organisations with an ethos based on religion or belief and 
other rights to non-discrimination 

In the UK, there are specific provisions and case law relating to conflicts between the rights 
of  organisations  with  an  ethos  based  on  religion  or  belief  and  other  rights  to  non-
discrimination in the context of employment.  

These provisions only apply to organised religions and not to other organisations with an 
ethos based on religion or belief. The compatibility of the (materially identical) predecessor 
provisions to Schedule 9 paragraph 2 with the Directive and with the ECHR was challenged 
in the Amicus case.115 The Court accepted the Government’s argument that the provision 
was  intended  to  have  a  narrow  scope  and  was  therefore  not  outside  Art  4(1)  of  the 
Directive. The Court was clear that the words  ‘for the purposes of an organised religion’ 
referred to the appointment of religious leaders and teachers such as priests and imams 
and would not apply to jobs with religious organisations such as schools and hospitals run 
by religious organisations.  

Schedule 9, paragraph 2 EqA provides that a person does not contravene any of the Act’s 
prohibitions  on  discrimination  in  relation  to  employment  by  an  organised  religion  by 
applying a ‘requirement related to sexual orientation’ (or sex, marriage or civil partnership) 
if  (broadly)  the  discriminator  shows  that:  (1)  the  employment  is  for  the  purposes  of  an 
organised  religion;  (2)  the  requirement  is  applied  to  comply  with  the  doctrines  of  the 
religion or to avoid conflicting with the strongly held religious convictions of a significant 
number  of  the  religion’s  followers.  The  relevant  provisions  of  the  SOR  (reg  8(3))  are 
materially  similar.  They  appear  to  go  beyond  the  exceptions  permitted  under  the 
Employment Equality Directive in that they do not provide that the ‘requirement related to 
sexual orientation’ (e.g. not engaging in any sexual activity at all, or not doing so outside 
of a different-sex marriage and accepting the religious organisation’s doctrines on same-
sex sexual activity) must be ‘proportionate’ to any legitimate aim, especially considering 
the nature of the job to which the requirement is applied (priest vs. cleaner in a convent). 
Nor  do  they  appear  to  comply  with  Article  4(2)  (second  para.)  of  the  Directive,  as  they 

113  O’Neill was decided before the entry into force of the School Standards and Framework Act, but its 

reasoning would still apply.  

114  Fair Employment and Treatment Order 1998 (FETO) Art 70. 
115  High Court, R (Amicus & Ors) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin), 

[2007] ICR 1176, [2004] IRLR 430, 26.04.2004, available at: 
www.bailii.org/ew/cases/EWHC/Admin/2004/860.html. 

38 

 
 
 
 
 
 
 
 
create  (as  drafted)  a  blanket  exception,  without  regard  to  the  conduct  of  the  individual 
employee  or  prospective  employee,  for  any  employment  ‘for  the  purposes  of  organised 
religion’. However, judicial interpretation of the Regulations116 and the EqA suggests that 
these provisions will be very narrowly interpreted, so as to apply  only to clergy or their 
equivalent. In such cases, it would be likely that occupational requirements to comply with 
religious doctrine would be proportionate.  

In Pemberton v Inwood, Acting Bishop of Southwell and Nottingham117 the Schedule 9(2) 
exception was applied in the context of the appointment of a chaplain in a National Health 
Service  (NHS)  hospital.  The  claimant,  an  ordained  clergyman  in  the  Church  of  England, 
entered a same-sex marriage with his long-term partner, contrary to the current doctrines 
of the Church of England regarding clergy. As a result, his Bishop revoked his Permission 
to Officiate and the relevant ministry licence. The licence and permission were needed to 
enable him to take up a post as a hospital chaplain in an NHS hospital trust. The Court had 
to decide whether the exceptions allowing such discrimination in relation to employment 
for the purposes of an organised religion would apply, given that the employer was to have 
been  the  NHS  trust  and  not  the  Church.  The  Court  of  Appeal  upheld  the  lower  court’s 
reasoning that the employment was for the purposes of an organised religion and so the 
exception applied. Although the work itself was for a secular employer (the NHS trust), for 
this particular position the employee had to be authorised by the Church, as the employee 
was going to be working in the role of a Church of England priest.  

It is arguable that the special exception for employment for the purposes of an organised 
religion  is  unnecessary,  as  requirements  relating  to  the  sex  or  sexual  orientation  of 
religious personnel would be covered in any event by the general occupational requirement 
provisions of Schedule 9 Paragraph 1: a requirement relating to sex or sexual orientation 
which is applied by a religious group in order to comply with religious doctrine118 would in 
many cases be judged to be proportionate if the provisions are interpreted to accord with 
the provisions of the ECHR. ECHR case law is clear that where an employee is playing a 
key role in the group’s manifestation of religion (for example, carrying out religious rites), 
the  autonomy  of  the  religious  group  should  be  accorded  great  weight  when  set  against 
other interests.119  

To date the controversial cases in the UK have arisen where individuals have alleged that 
they have been subject to religious discrimination for refusing to perform functions relating 
to same-sex partnership and family rights (see Ladele & McFarlane v United Kingdom).120 
In Ladele the Court of Appeal held that the refusal of a Christian registrar’s request to be 
exempt  from  carrying  out  civil  partnerships  did  not  amount  to  indirect  religious 
discrimination as it was justified. The employer was entitled to rely on its policy of requiring 
all staff to offer services to all service users regardless of sexual orientation.121 The ECtHR 
confirmed that this decision did not breach Articles 9 and 14 ECHR.122  

− 

Religious institutions affecting employment in state funded entities 

116  High Court, R (Amicus & Ors) v Secretary of State for Trade and Industry, Ibid. 
117  Court of Appeal, Pemberton v Inwood [2018] EWCA Civ 564, available at: 

https://www.bailii.org/ew/cases/EWCA/Civ/2018/564.html. 

118  Or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s 

followers. 

119  See, for example, European Court of Human Rights Hasan v Bulgaria App No 30985/96, (2002) 34 EHRR 55 
26.10.2000, available at: www.bailii.org/eu/cases/ECHR/2000/511.html; European Court of Human Rights, 
Serif v Greece App No 38178/97 (2001) 31 EHRR 20 14.12.1999, available at: 
www.bailii.org/eu/cases/ECHR/1999/169.html. 

120  Decided with European Court of Human Rights Eweida v United Kingdom, [2013] ECHR 37, 15.01.2013, 

available at: www.bailii.org/eu/cases/ECHR/2013/37.html. 

121  Court of Appeal Ladele v Islington Borough Council [2009] EWCA Civ 1357, 15.12.2009, available at: 

www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html. 

122  Decided with European Court of Human Rights Eweida v United Kingdom, [2013] ECHR 37, 15.01.2013, 

available at: www.bailii.org/eu/cases/ECHR/2013/37.html. 

39 

 
 
 
 
 
 
 
In the UK, religious institutions are permitted to select people (on the basis of their religion) 
to be hired for or dismissed from a job when that job is in a state entity, or in an entity 
financed by the State. The exceptions described above apply equally when the employer 
is a state-funded entity. See for example, Pemberton above, where the employer was a 
National Health Service trust; and the position in relation to state-funded schools under 
the School Standards and Framework Act 1998, discussed above.  

4.3  Armed  forces  and  other  specific  occupations  (Article  3(4)  and  Recital  18 

Directive 2000/78) 

In the UK, national legislation provides for an exception for the armed forces in relation to 
age and disability discrimination (Article 3(4), Directive 2000/78/EC). The EqA disapplies 
the  prohibition  on  employment-related  age  and  disability  discrimination  in  relation  to 
service in the armed forces (Schedule 9, paragraph 4). In NI, the Age Regs do not extend 
to the armed forces and the DDA includes an exception in relation to service in the armed 
forces (Regulation 50(4), Section 64(7) respectively).  

4.4  Nationality discrimination (Article 3(2)) 

a)  Discrimination on the ground of nationality 

In the UK, national law includes limited exceptions relating to difference of treatment based 
on  nationality.  These  exceptions  relate  for  the  most  part  to  immigration.  Schedule  18, 
paragraph 2 EqA disapplies Section 149 (the Public Sector Equality Duty)  on grounds of 
nationality  (and  ethnic  or  national  origins)  in  the  carrying  out  of  specified  immigration 
control  functions.  The  RRO  also  permits  discrimination  on  grounds  of  nationality  in  the 
immigration function. Under the Race Relations (Immigration and Asylum) Authorisation 
2011 there is a list (not in the public domain) of nationalities and a person of a nationality 
on the list seeking to enter the UK can be subjected  to more rigorous examination than 
other people, detention pending examination, refusal of leave to enter and imposition of 
conditions  on  temporary  admission  and  a  person  of  a  nationality  on  the  list  wishing  to 
travel to the UK can be refused leave to enter or can be required to provide information 
and documents. 

In the UK, nationality (as in citizenship) is explicitly mentioned as a protected ground in 
national  anti-discrimination  law  and  generally  receives  the  same  level  of  protection  as 
ethnicity, national origins and colour (EqA Section 9, RRO reg 5). 

However,  the  UK  does  distinguish  between  discrimination  because  of  nationality  and 
discrimination because of immigration status. Those with a precarious immigration status, 
for example without the right to work, remain vulnerable to poor treatment in employment. 
However, any unequal treatment on the basis of immigration status is not covered by the 
equality law framework. This was confirmed in Taiwo v Olaigbe; Onu v Akwiwu123 where 
the Supreme Court held that discrimination because of immigration status did not amount 
to discrimination because of nationality.  The bad treatment experienced by the claimant 
was  discrimination  because  of  vulnerable  immigration  status,  but  this  status  is  not  a 
protected characteristic under the Equality Act 2010.124 

b) 

Relationship between nationality and ‘racial or ethnic origin’ 

Claimants  choose  how  to  categorise  the  discrimination  of  which  they  complain  and  may 
choose to advance their claim on a single, alternative or multiple grounds. A Zimbabwean 
African  woman  might,  for  example,  be  treated  less  favourably  because  she  is  Black,  or 

123  Supreme Court, Taiwo v Olaigbe; Onu v Akwiwu [2016] UKSC 31, available at: 
https://www.supremecourt.uk/cases/docs/uksc-2014-0105-judgment.pdf. 

124  People without legal leave to remain in the UK are protected generally under the Equality Act, so a claim 
could be brought for discrimination on other grounds. Hounga v Allen and another [2014] UKSC 47. 

40 

 
 
 
 
 
 
 
 
 
 
 
because she is of African origin, or specifically because of her Zimbabwean nationality. Or 
she  may  be  discriminated  against  precisely  because  she  is  a  Black  Zimbabwean. 
Alternatively,  a  Zimbabwean  woman  may  be  discriminated  against  directly  due  to 
nationality and indirectly due to race or ethnic origin. Very little attention is paid in domestic 
case law to the overlaps between these types of categories because, for the most part, the 
protection afforded then under national law does not differ.125 

4.5 

 Health and safety (Article 7(2) Directive 2000/78) 

a) 

Exceptions in relation to disability and health/safety 

In NI, but not GB, there are some limited exceptions in relation to disability and health and 
safety as allowed under Article 7(2), Directive 2000/78/EC. 

In GB, there is no justification defence for direct discrimination, which is narrowly defined, 
though there is a general justification defence for other forms of disability discrimination 
(such as where, for example, a disabled person is treated less favourably for reasons which 
result  from  his  or  her  disability,  rather  than  because  of  the  disability  itself:  Section  15 
EqA). In such cases the question will be whether the treatment was ‘a proportionate means 
of achieving a legitimate aim’. 

In  NI,  disability-related  discrimination  in  the  provision  of  goods  and  services  can  be 
justified under the DDA (Section 20(4)) on the grounds of health and safety, where the 
treatment  is  necessary  in  order  not  to  endanger  the  health  and  safety  of  any  person 
(including the disabled person).  

Other than in relation to pregnant women, the EqA does not contain any exceptions relating 
to  health  and  safety.  NI  legislation  outlawing  discrimination  on  grounds  other  than 
disability does not include specific exceptions relating to health and safety law.  

A number of cases alleging indirect discrimination on grounds of race or religion have been 
brought where employers or educational institutions have imposed dress codes on health 
and safety grounds that disadvantaged members of particular racial groups who were not 
able to comply with the dress requirements. Examples of such codes include a ‘no beards’ 
requirement applicable, for  reasons of hygiene, to those involved in  food preparation  or 
packaging,126  and  a  requirement  that  all  railway  repair  workers  wear  protective  head 
gear.127 Chaplin v Royal Devon and Exeter NHS Foundation Trust128 involved a challenge 
to the imposition of a health and safety prohibition by a hospital of the wearing of necklaces 
(in  the  claimant’s  case,  a  crucifix).  The  claimant’s  challenge  to  the  ECtHR  failed.  The 
restriction on religious freedom was justified as it served the legitimate aim of protecting 
health and safety.129 

The outcome of such cases, in common with any other complaint of indirect discrimination, 
depends  on  whether  the  employer  can  show  that  their  need  for  the  rule  outweighs  its 
discriminatory  impact:  often  such  cases  have  resulted  in  the  employer  recognising  that 
there were other, non-discriminatory ways in which they could have dealt with the health 
and safety risk.  

125  For a rare exception see Court of Appeal R (Mohammed) v Secretary of State for Defence, [2007] EWCA Civ 
1023, [2007] All ER (D) 9 01.05.2007, available at: www.bailii.org/ew/cases/EWCA/Civ/2007/1023.html. 

126  Court of Appeal Panesar v Nestle Co. Ltd. [1980] IRLR 64 27.11.1979. 
127  Employment Appeal Tribunal Singh v British Rail Engineering Ltd [1986] ICR 22, 29.07.1985. 
128  Employment Tribunal Chaplin v Royal Devon and Exeter NHS Foundation Trust [2011] EqLR 548 

(21.04.2010) [2010] ET 1702886/2009.  

129  European Court of Human Rights Eweida v United Kingdom, [2013] ECHR 37, 15.01.2013, available at: 

www.bailii.org/eu/cases/ECHR/2013/37.html. 

41 

 
 
 
 
 
 
 
 
 
 
 
 
It should be noted that Sikh men wearing turbans are exempted from otherwise generally 
applicable  statutory  requirements  to  wear  motorcycle  helmets  when  riding  motorcycles 
and to wear hard hats when working on construction sites.130 

4.6  Exceptions related to discrimination on the ground of age (Article 6 Directive 

2000/78) 

4.6.1  Direct discrimination 

In  the  UK,  national  law  provides  for  specific  exceptions  for  direct  discrimination  on  the 
ground of age (EqA Section 13(2), Regulation 3 Age Regs).  

Specific exceptions allow age distinctions in the payment of the national minimum wage in 
order  to  encourage  employers  to  employ  younger  workers  (see  EqA,  Schedule  9, 
paragraphs  11  and  12,  Age  Regs  Regulation  33).  Paragraph  14  provides  specific 
exemptions  allowing  the  payment  of  insurance  benefits  to  older  workers:  in  NI  the 
equivalent  exemption  covers  the  payment  of  life  assurance  benefits  to  retired  workers 
(Regulation 36) while special and complex exceptions are also made for the use of some 
age-based criteria in invalidity and occupational pension schemes, as permitted by Article 
6(2) of the Directive: see 7.4.1 (c) below.  

Provision  is  also  made  for  positive  action  in  training  and  encouraging  workers  from 
particular age groups: this is much narrower in NI (Regulation 31) than in GB following the 
implementation  of  the  positive  action  provisions  of  the  EqA.  Another  specific  exemption 
allows  older  workers  to  receive  higher  levels  of  redundancy  payment  (Schedule  9, 
paragraph  13  EqA/  Regulation  35  Age  Regs).  Although  controversial,  these  latter 
exceptions would appear to comply with CJEU case law such as Odar v Baxter Deutschland 
GmbH.131  

a) 

Justification of direct discrimination on the ground of age 

In the UK, national law provides for justifications for direct discrimination on the ground of 
age. (Section 13(2) and Schedule 9 EqA, Regulations 3, 28-31 and 33-36 Age Regs.) 

Direct  discrimination  on  the  ground  of  age  can  be  justified  where  the  discriminator  can 
show that the discriminatory treatment on the grounds of age is a proportionate means of 
achieving a legitimate aim.  

Most cases  on age discrimination have involved indirect discrimination (see  for  example 
Harrod  &  Ors  v  Chief  Constable  of  West  Midlands  Police  &  Ors).132  In  relation  to  the 
justification of direct discrimination in  Homer  v Chief Constable  of  West Yorkshire Police 
the Supreme Court ruled that the aims which could justify direct age discrimination were 
narrower than the aims which could justify indirect discrimination generally, being limited 
to  the  social  policy  or  other  objectives  derived  from  Articles  6(1),  4(1)  and  2(5)  of  the 
Directive.133 Seldon v Clarkson Wright & Jakes (discussed below at 4.7.4) involved direct 
discrimination in the case of mandatory retirement age. The Supreme Court accepted that 
direct discrimination could be justified, relying on the interests of staff retention, workforce 
planning and congeniality accepted as potentially legitimate aims.134  

130  Highway Code Rule 83; Employment Act 1989 S11.  
131  Court of Justice of the European Communities [2012] EUECJ C-152/11 6.12.2012, available at: 

www.bailii.org/eu/cases/EUECJ/2012/C15211.html. 
132  Court of Appeal [2017] EWCA Civ 191, available at: 

https://www.bailii.org/ew/cases/EWCA/Civ/2017/191.html. 

133  Supreme Court [2012] UKSC 15, [2012] IRLR 601, 25.04.2012, available at: 

www.bailii.org/uk/cases/UKSC/2012/15.html. 

134  Supreme Court [2012] UKSC 16, [2012] IRLR 590 [2012] EqLR 579, 25.04.2012, available at: 

https://www.supremecourt.uk/cases/uksc-2010-0201.html. 

42 

 
 
 
 
 
 
 
 
 
 
 
 
 
Lord Chancellor v McCloud; Home Secretary v Sargeant135 involved justification of direct 
discrimination. McCloud and others were members of the Judicial Pension Scheme (JPS). 
The JPS was closed on 31.03.2015 and serving judges were compulsorily transferred into 
a replacement scheme. Transitional provisions were put in place to allow older judges to 
remain members of the JPS, either until retirement (‘full protection members’) or until the 
end  of  a  period  of  tapered  protection  of  approximately  ten  years  (‘tapered  protection 
members’), depending on their age. Sargeant and others were members of the Firefighters’ 
Pension Scheme, subject to similar pension reforms. The Court of Appeal upheld the claims 
of direct discrimination brought by younger pension members who were denied the benefit 
of  the  more  favourable  transitional  provisions.  The  Court  of  Appeal  confirmed  the  lower 
court’s decision that a legitimate aim had not been identified. Although a social policy had 
been identified (to protect older people from the ‘harm’ of reduced pension) this was not 
capable  of  being  a  legitimate  aim  justifying  the  discrimination,  as  it  was  not  based  on 
evidence, but instead on instinct (the belief that such an approach ‘felt right’, and ‘was a 
moral decision’). Instead, supporting evidence was required to substantiate the legitimacy 
of  any  justification  claim.  In  2019  the  Supreme  Court  refused  permission  to  the 
Government to appeal against the Court of Appeal decision.  

The test applied in the UK would appear to be consistent with that in Article 6(2), account 
being taken of the Court of Justice of the European Union in the Case C-144/04, Mangold 
and Case C-555/07 Kucukdeveci.  

b) 

Permitted differences of treatment based on age 

In the UK, national law permits differences of treatment based on age for some activities 
within the material scope of Directive 2000/78/EC. 

In addition to the matters discussed in a) above, benefits that are linked to an employee’s 
length  of  service  with  a  particular  employer  are  also  exempted  from  the  legislation  in 
certain circumstances. The use of length of service by an employer to award or increase 
benefits  to  employees  during  the  first  five  years  of  their  service  is  deemed  by  the  EqA 
(Schedule 9, paragraph 10: in NI by the Age Regs, reg 34) to be clearly justified and a 
complete and automatic exemption will apply: the UK  Government considers that this is 
objectively justified as it allows employers to encourage recently recruited employees to 
remain with their new employers for at least some time. 

In  contrast,  discriminating  between  employees  on  the  basis  of  length  of  service 
requirements  which  are  longer  than  five  years  may  still  be  justified,  but  will  not  be 
automatically  so.  Regulation  34(2)  Age  Regs  provides  that  ‘Where  B’s  length  of  service 
exceeds 5 years, it must reasonably appear to A that the way in which he uses the criterion 
of length of service, in relation to the award in respect of which B is put at a disadvantage, 
fulfils  a  business  need  of  his  undertaking  (for  example,  by  encouraging  the  loyalty  or 
motivation,  or  rewarding  the  experience,  of  some  or  all  of  his  workers)’.  By  contrast, 
Schedule 9, paragraph  10(2) EqA provides only that, ‘If B’s period of service exceeds 5 
years, A may rely on  sub-paragraph (1) [which permits the  reward of service] only if A 
reasonably believes that doing so fulfils a business need.’  

c) 

Fixing  of  ages  for  admission  or  entitlement  to  benefits  of  occupational  pension 
schemes 

In the UK, national law allows occupational pension schemes to fix ages for admission to 
the scheme or entitlement to benefits, taking up the possibility provided for by Article 6(2). 

The  EqA  (Age  Exceptions  for  Pension  Schemes)  Order  2010  provides  wide  exceptions 
including  in  relation  to  the  application  of  length-of-service  provisions;  minimum  and 

135  Court of Appeal [2018] EWCA Civ 2844, available at: https://www.judiciary.uk/wp-

content/uploads/2018/12/lord-chancellor-v-mcloud-and-ors-judgment.pdf.  

43 

 
 
 
 
 
 
 
 
 
 
maximum age limits and minimum pay limits on admissions to pension schemes; the use 
of  age  criteria  in  actuarial  calculations  and  contributions;  minimum  age  for  age-related 
benefits;  the  specification  of  normal  retirement  dates  and  payment  of  early  and  late 
retirement pensions; the payment of ill-health early retirement pensions without reduction 
and/or  with  enhancement,  etc.  Similar  exceptions  are  provided  in  NI.136  Some  of  these 
exceptions may be potentially wider in scope than the exception set out in Article 6(2) of 
the Directive and any exceptions still in the regulations that lie outside the scope of Article 
6(2) will have to be shown to be objectively justified under Article 6(1).  

4.6.2  Special conditions for young people and older workers  

In the UK, there are special conditions set by law for younger workers in order to promote 
their vocational integration. There are no special conditions set for older workers. 

The national minimum wage (NMW) is paid to those under 25. For those over 25 it is called 
the national living wage. The rates vary by age. The rates as of April 2019 have increased 
to:137 under 18 EUR 4.79 (GBP 4.35) per hour; 18-20 EUR 6.77 (GBP 6.15) per hour; 21-
24, EUR 8.48 (GBP 7.70), 25 and over EUR 9.04 (GBP 8.213) per hour. Apprentices under 
19, or 19 and over but in their first year of apprenticeship, are entitled only to EUR 4.29 
(GBP 3.90) per hour. 

The EqA and NI Age Regulations, as discussed above, contain exemptions allowing for the 
payment of age differentiated NMW, but not otherwise permitting different rates according 
to age. The UK Government argues that the exception is objectively justified as necessary 
to promote the integration of younger workers into the workforce.  

4.6.3  Minimum and maximum age requirements 

In the UK, there are exceptions permitting minimum and/or maximum age requirements 
in relation to access to employment and training. 

Leaving aside the possibility of positive action, there are national laws and local by-laws 
(along with specific NI legislation) regulating the employment of children (up to minimum 
school leaving age (age 16, although they must continue with some education until 18))138 
consistent with EC Directive 94/33/EC. Currently, a wide variety of trades and professions 
set  minimum  age  for  entry  as  trainees:  the  use  of  such  entry  ages  will  have  to  be 
objectively  justified  under  the  age  regulations.  Health  and  safety  considerations  may 
influence minimum age for certain types of jobs. In some cases, there are also maximum 
ages for entry while some jobs, notably judicial office, are subject to maximum age limits 
(broadly 70 or 75 depending on date of appointment). In fixing age limits which are not 
prescribed by law employers will have to take care to avoid unjustifiable age discrimination 
and  unlawful  discrimination  on  other  grounds.  A  maximum  age  for  entry  to  the  Civil 
Service, for example was held to be unlawful indirect discrimination on grounds of sex prior 
to the implementation of the legislative prohibition of age discrimination as such.139 Any 
difference in age limits for men and women would be unlawful sex discrimination. 

4.6.4  Retirement  

a) 

State pension age 

136  Age Regs Sch 1. 
137  Increase in Sterling amounts, but showing as decrease on 2018 when converted to Euro.  
138  Young people can leave school at 16 but until the age of 18 they must stay in full-time education, start an 

apprenticeship or traineeship, or spend 20 hours or more a week working or volunteering, while in part-time 
education or training. 

139  Employment Appeal Tribunal, Price v Civil Service Commission, [1977] 1 WLR 1417, [1977] IRLR 291, 

15.07.1977, available at: www.bailii.org/uk/cases/UKEAT/1977/1_77_1507.html. 

44 

 
 
 
 
 
 
 
 
 
 
 
 
In the UK, there is no state pension age at which individuals  must begin to collect their 
state pensions. If an individual wishes to work beyond the state pension age, the pension 
can be deferred.  

State pensions can be collected from 65. The age used to differ for men and women, but 
has been equalised at  65 from November 2018. The age will increase to 66 by  October 
2020 and to 67 by 2028, with a plan to increase to 68 between 2037 and 2039. 

An individual can collect a pension and still work. 

b)  Occupational pension schemes 

In  the  UK,  there  is  no  standard  age  when  people  can  begin  to  receive  payments  from 
occupational pension schemes and other employer-funded pension arrangements.  

If an individual wishes to work longer, payments from such occupational pension schemes 
can usually be deferred.  

An individual can usually collect a pension and still work. 

c) 

State imposed mandatory retirement ages 

In the UK, there is no state-imposed mandatory retirement age, though for certain public 
sector  employment  that  is  regulated  by  statute  there  are  national  laws  specifying  a 
retirement age. (Examples include the judiciary, the police and some civil servants.) Where 
no  statutory  retirement  age  is  specified,  mandatory  retirement  ages  have  been 
unenforceable since April 2011 unless justifiable by the employer.  

d) 

Retirement ages imposed by employers 

In the UK, national law permits  employers to  set  retirement ages (or ages at which the 
termination of an employment contract is possible) by contract and/or collective bargaining 
and/or unilaterally, subject to the justifiability of the resulting age discrimination.  

In the landmark case of  Seldon v Clarkson Wright & Jakes  the Supreme Court accepted 
that an employer could in principle impose a mandatory retirement age on a partner in a 
law firm in the interests of retention (‘ensuring that associates are given the opportunity 
of partnership after a reasonable period as an associate, thereby ensuring that associates 
do not leave the firm’), workforce planning (‘facilitating the planning of the partnership and 
workforce across individual departments by having a realistic long term expectation as to 
when vacancies will arise’) and congeniality (‘limiting the need to expel partners by way of 
performance management, thus contributing to the congenial and supportive culture in the 
firm’).140 The Court referred back to the lower courts the question whether the retirement 
age selected was in fact justifiable. In Seldon v Clarkson Wright & Jakes (No.2) the EAT 
ruled that the enforced retirement at 65 of the equity partner was justified. The EAT did 
not  accept  that  the  employer  was  under  a  heavy  burden  to  justify  the  choice  of  the 
particular age (there 65) in circumstances in which the aims pursued required that an age 
be selected, but there was no strong reason for selecting 65 instead of (say) 66 or 67.141 

e) 

Employment rights applicable to all workers irrespective of age 

The law on protection against dismissal and other laws protecting employment rights apply 
to  all  workers  irrespective  of  age,  even  if  they  remain  in  employment  after  attaining 
pensionable age or any other age.  

140  Supreme Court [2012] UKSC 16, [2012] IRLR 590 [2012] EqLR 579, 25.04.2012, available at: 

https://www.supremecourt.uk/cases/uksc-2010-0201.html. 
141  Employment Appeal Tribunal [2014] IRLR 748, 13.05.2014. 

45 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
f) 

Compliance of national law with CJEU case law 

In the UK, national legislation is in line with the CJEU case law on age regarding mandatory 
retirement.  

The possible justification of mandatory retirement ages would appear to be in line with EU 
case law, this being the starting point adopted by the Supreme Court in Seldon.  

4.6.5  Redundancy 

a) 

Age and seniority taken into account for redundancy selection 

In  the  UK,  national  law  permits  age  and  seniority  to  be  taken  into  account  in  selecting 
workers for redundancy as long as this is justified.142  

b) 

Age taken into account for redundancy compensation 

In  the  UK,  national  law  provides  compensation  for  redundancy.  Such  compensation  is 
affected by the age of the worker.  

Older workers may receive higher levels of redundancy payment (Schedule 9, paragraph 
13 EqA/ Regulation 35 SOR 2003). The UK Government considers that this exemption is 
objectively justified under the Directive, given that older workers have less future earning 
potential than younger workers, but this remains controversial.  

Age discrimination is capable of justification so could be taken into account in redundancy 
decisions, subject to the employer’s ability to justify it. Taking into account seniority may 
amount to indirect age discrimination but this, again, is capable of justification (see 4.6.1 
above).  

4.7  Public  security,  public  order,  criminal  offences,  protection  of  health, 
protection  of  the  rights  and  freedoms  of  others  (Article  2(5),  Directive 
2000/78) 

In  the  UK,  national  law  includes  exceptions  that  seek  to  rely  on  Article  2(5)  of  the 
Employment Equality Directive. 

The EqA provides (Section 192) that, ‘A person does not contravene this Act only by doing, 
for the purpose of safeguarding national security, anything it is proportionate to do for that 
purpose.’ The Act makes no reference to protecting public safety or public order. 

The  RRO  (Article  41),  FETO  (Article  79),  SOR  2003  (Regulation  26)  and  Age  Regs 
(Regulation 29) provide an exception for an act done for the purpose of protecting public 
safety  or  public  order:  ‘Nothing  …  shall  render  unlawful  an  act  done  for  the  purpose  of 
safeguarding national security or of protecting public safety or public order’ and ‘the doing 
of the act is justified by that purpose’.  

4.8  Any other exceptions 

In the UK, other exceptions to the prohibition of discrimination (on any ground) provided 
in national law are the following:  

142  Rolls Royce Plc v Unite, Court of Appeal [2009] EWCA Civ 387, [2009] IRLR 576, 14.05.2009, available at: 
www.bailii.org/ew/cases/EWCA/Civ/2009/387.html. The case is curious in that the employer was arguing 
that their own redundancy scheme was unlawful in order to end the existing collective agreement and to 
negotiate another one more favourable to the employer’s interests, while the union was defending the 
scheme. 

46 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
− 

− 

The  DDA, which applies in NI,  contains an  exception (Section 59)  for  acts done in 
pursuance of primary legislation, including any passed after the date of the DDA or 
to comply with secondary legislation made after the date of the DDA or any condition 
or requirement imposed by a Minister of the Crown. Such an exception, which (unlike 
the statutory authority exceptions in the EqA) applies to discrimination falling within 
the scope of EU law, may be in breach of the Employment Equality Directive (Article 
16).  
Outside  of  the  scope  of  the  directives  the  EqA,  the  RRO  and  the  Age  Regulations 
retain exceptions for all acts done under statutory authority.143 

143  EqA Sch 22 para 1, RRO Art 40 and Age Regs reg 28. 

47 

 
 
 
5 

POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78) 

a) 

Scope for positive action measures 

In the UK, positive action is permitted in national law in respect of racial or ethnic origin, 
religion or belief, disability, age and sexual orientation. In addition, Section 149 Equality 
Act 2010 creates the Public Sector Equality Duty. This provides that public authorities must 
have  due  regard  to  the  need  to  eliminate  discrimination,  harassment,  victimisation  and 
any other conduct that is prohibited by or under the Act; advance equality of opportunity 
between persons who share a protected characteristic and persons who do not share it; 
and  foster  good  relations  between  persons  who  share  a  protected  characteristic  and 
persons  who do not  share it. In response, many public sector organisations have put in 
place processes to try to promote equality in the workplace and in the provision of their 
services, as part of a process of mainstreaming equality. Section 75 Northern Ireland Act 
1998 imposes a similar duty on public authorities.  

In GB, the EqA provides quite broad provisions permitting the taking of any proportionate 
positive action where a person ‘reasonably thinks that— (a) persons who share a protected 
characteristic suffer a disadvantage connected to the characteristic, (b) persons who share 
a protected characteristic have needs that are different from the needs of persons who do 
not  share  it,  or  (c)  participation  in  an  activity  by  persons  who  share  a  protected 
characteristic  is  disproportionately  low’  (Section  158).  Where  employment  is  concerned, 
Section 159 allows more favourable treatment  of those  from a disadvantaged or under-
represented group as regards recruitment or promotion where (but only where) the person 
appointed/  promoted  is  as  qualified  as  others  over  whom  s/he  is  preferred.  These 
provisions (in particular Section 159) were relatively controversial in the debates about the 
Equality Bill (as it then was) but have generated little discussion since. 

The  EqA  also  makes  provision  (Section  104)  for  positive  action  across  all  the  protected 
grounds  in  the  selection  of  candidates  for  election,  something  which  previously  was 
available only in relation to gender. Those provisions are intended to enable parties in GB 
to  take  a  wider  range  of  positive  action  measures  in  relation  to  matters  regarding  their 
constitution, organisation and administration. They are not, however, permitted to adopt 
wide-ranging positive action measures to ensure the selection of ethnic minority candidates 
for parliamentary seats such as by introducing all-minority shortlists for candidate selection 
in certain constituencies. (Women-only shortlists, by contrast, are and will remain lawful.) 

In NI, as in GB, only disabled people are protected from discrimination related to disability, 
so all positive action related to disability is lawful. In addition, some limited training and 
encouragement  measures  are  permitted  in  the  employment  context  in  relation  to  race/ 
ethnicity  and  sexual  orientation  (RRO  Articles  35  and  37,  SOR  2003  Regulation  29). 
Examples include placing advertisements in the press welcoming gay, lesbian and bisexual 
people; or offering training facilities in the workplace  aimed at combating disadvantage. 
Regulation 31 of the Age Regs provides a specific exception is made for positive action that 
gives people of a particular age access to training facilities to help them take on particular 
work,  or  that  allows  them  to  take  advantage  of  opportunities  for  doing  particular  work, 
where  it  seems  reasonably  necessary  to  introduce  these  measures  to  prevent  or 
compensate  for  disadvantages  linked  to  age.  However,  because  the  DDA  prohibits 
disability-related  discrimination  only  against  those  recognised  by  the  Act  as  ‘disabled’, 
there was no need to include in the DDA specific positive action provisions like those in 
other  anti-discrimination  legislation  that  operate  as  exceptions  to  the  prohibition  of 
discrimination.  

Prior  to  the  implementation  of  the  positive  action  provisions  of  the  EqA,  the  most 
comprehensive positive action provisions relating to employment in the UK were found in 
FETO. Article 4 FETO permits and in certain cases requires employers to take ‘affirmative 
action’ which is defined as: 

48 

 
 
 
 
 
 
 
‘…action  designed  to  secure  fair  participation  in  employment  by  members  of  the 
Protestant,  or  members  of  the  Roman  Catholic,  community  in  Northern  Ireland  by 
means including – 
1) 
2) 
effect of restricting or discouraging such participation.’ 

The adoption of practices encouraging such participation; and 
The  modification  or  abandonment  of  practices  that  have  or  may  have  the 

In addition, Article 55 requires employers to review the composition of the workforce to 
determine  whether  each  community  is  enjoying  fair  participation;  Article  60  allows  the 
Equality Commission for Northern Ireland to set timetables for the achievement of equality 
goals;  and  Article  74  allows  measures  to  encourage  applications, etc. from  an  under-
represented community. 

b)  Quotas in employment for people with disabilities 

In  the  UK,  national  law  does  not  provide  for  quotas  for  the  employment  of  people  with 
disabilities. 

49 

 
 
 
 
 
6 

REMEDIES AND ENFORCEMENT  

6.1  Judicial  and/or  administrative  procedures  (Article  7  Directive  2000/43, 

Article 9 Directive 2000/78) 

a) 

Available procedures for enforcing the principle of equal treatment 

In the UK, the following procedures exist  for  enforcing the principle  of equal treatment. 
The procedures are the same for employment in the private and public sectors.  

The UK anti-discrimination legislation (EqA, Part 9; RRO Articles 51-54; DDA Sections 17A 
and  25;  FETO  Articles  38-40;  SOR  Regulations  34-38;  NI  Age  Regs  Part  6)  includes 
provisions enabling individuals who consider they have been discriminated against contrary 
to  the  Act/Order/Regulations  to  bring  legal  proceedings;  complaints  concerning 
employment-related discrimination (public sector and private sector) can be made to the 
employment  tribunal  (industrial  tribunal  or  Fair  Employment  Tribunal  in  NI),  and 
complaints concerning any other unlawful discrimination (by public sector or private sector 
bodies) can be made to the civil court (county court in England, Wales and NI and sheriff 
court in Scotland). The court/tribunal procedures are available to any person who considers 
s/he has suffered unlawful discrimination.  

Employment/industrial tribunals were established to consider the full range of employment 
disputes.  Each  tribunal  has  a  legally  qualified  chair  and  two  lay  members,  one  broadly 
representing  employers and the  other employees. In the county/sheriff court, cases are 
decided by a single judge; for cases under the EqA, however, the judge must generally be 
assisted by two lay assessors, people selected from a list maintained by the Secretary of 
State, unless the parties agree that the judge should sit without assessors (Section 114). 
Decisions of tribunals and courts are binding, subject to any successful appeal by the losing 
party. 

The EHRC and ECNI have powers to investigate whether or not a person has committed an 
unlawful act under the equality acts.144  

In terms of alternative dispute resolution procedures, all claims to the employment tribunal 
for unfair dismissal or unlawful discrimination are referred to the Advisory Conciliation and 
Arbitration  Service  (ACAS),  or  in  NI  the  Labour  Relations  Agency,  which  have  statutory 
duties  to  promote  settlements.  Claimants  in  GB  must  contact  ACAS  with  a  view  to 
determining  whether  early  conciliation  is  possible.  Settlements  agreed  through  ACAS  or 
the Labour Relations Agency are binding on the parties. Employment cases may also, with 
the agreement of the parties, be selected for judicial mediation which is also available in 
the county courts. Criminal proceedings are not available. 

b) 

Barriers and other deterrents faced by litigants seeking redress 

Research  consistently  reveals  that  the  majority  of  people  who  consider  they  have  been 
victims of unlawful discrimination or harassment are very slow to seek legal redress. The 
main reasons are generally lack of confidence that they will be believed or fear that they 
will  face  some  form  of  retaliation  or  victimisation.145  Individuals  who  are  confident  and 
determined enough to consider bringing legal proceedings face a number of barriers. There 
are statutory time limits for the initiation of complaints of discrimination (three months for 
employment-related cases and six months in the county/sheriff court, though the court or 
tribunal  may  consider  an  application  submitted  outside  these  time  limits  if  in  all  of  the 
circumstances it considers that it is just and equitable to do so).  

144  Equality Act 2006 s 20; Northern Ireland Act 1998 Sched 9 para 10.  
145  Aston J, Hill D, Tackey N. (2006), The experience of claimants in race discrimination employment tribunal 

Cases, Department of Trade and Industry, Employment Relations Research Series, ERRS55. 

50 

 
 
 
 
 
 
 
 
 
 
 
Legal  aid  is  available  for  discrimination  claims,  but  limits  in  terms  of  means  testing  of 
support, as well as limits on what can be paid for, results in a significant barrier for litigants. 
An  inability  to  afford  legal  representation  can  create  an  ‘inequality  of  arms’  when  an 
opponent has more financial resources.  

Employment tribunals do not normally order the unsuccessful party to pay the costs of the 
winner,  though  a  tribunal  may  order  costs  against  a  party  who  has  acted  ‘vexatiously, 
abusively,  disruptively  or  otherwise  unreasonably’,  or  whose  bringing  or  conduct  of  the 
proceedings is ‘misconceived’, i.e. has no reasonable prospect of success. The maximum 
amount of such costs is EUR 22 019 (GBP 20 000). It may be difficult for unrepresented 
claimants  to  know  if  their  case  is  ‘misconceived’.  In  the  county/sheriff  court,  with  few 
exceptions, an unsuccessful applicant will be ordered to meet the costs of the respondent. 
It is difficult to over-state how much of a barrier this places in practice to litigation.  

Disabled  people  may  have  additional  barriers  to  seeking  legal  redress;  while  the  courts 
have  a  duty  as  service  providers  to  make  reasonable  adjustments  in  anticipation  of  the 
needs  of  disabled  people  (Section  19,  20B  &21B  DDA,  Sections  20  &  29  EqA),  there 
continue  to  be  occasions  when  disabled  people  are  significantly  disadvantaged.  Some 
courts  and  tribunals  are  not  physically  accessible  and  there  are  examples  where  no 
interpreters  or  unsuitable  interpreters  were  provided  or  documents  not  provided  in 
alternative formats, e.g. Braille, large font size.  

A  person  may  bring  a  case  after  the  employment  relationship  has  ended  subject  to  the 
applicable  time  limits.  Section  108  of  the  EqA  provides  that,  ‘A  person  (A)  must  not 
discriminate against another (B) [or harass B] if— (a) the discrimination arises out of and 
is closely connected to a relationship which used to exist between them, and (b) conduct 
of a description constituting the discrimination would, if it occurred during the relationship, 
contravene  this  Act’.  Section  108(4)  provides  further  that,  ‘A  duty  to  make  reasonable 
adjustments  applies  to  A  [if  B  is]  placed  at  a  substantial  disadvantage  as  mentioned  in 
Section 20’. Similar provision is made in NI.146  

A  final  barrier  for  discrimination  claimants  is  the  lack  of  skilled,  experienced  advice  and 
assistance. Discrimination law is increasingly complex. Not only is most of the evidence in 
the hands of the respondent, but, in most cases, the respondent will have access to legal 
or other professional advice and representation. Although complainants can bring a case 
without a lawyer, without access to skilled case preparation and representation, they are 
far less likely to succeed.  

Success  rates  for  discrimination  complaints  are  not  high,  even  with  representation; 
complaints of race discrimination are least likely to succeed (see paragraph c. below). The 
EHRC  and  ECNI  are  able  to  assist  relatively  few  applicants;  public  funding  generally 
involves strict means testing and is not available for legal representation in tribunals. The 
lack of available skilled advice, assistance and representation in discrimination cases is a 
matter of growing concern. 

c) 

Number of discrimination cases brought to justice 

In  the  UK,  statistics  are  not  available  on  the  number  of  cases  related  to  discrimination 
brought  to  justice.  However,  there  are  statistics  showing  the  number  of  employment 
discrimination claims which were accepted by the employment tribunals in 2018-19. There 
is no equivalent data on the amount of goods and services, education or social protection 
cases brought before the county courts.  

146  Race Relations (Northern Ireland) Order 1997 (RRO) Art 27A, Fair Employment and Treatment Order 1998 
(FETO) Art 33A, Employment Equality (Sexual Orientation) Regulations (NI) 2003 (SOR 2003) reg 23; 
Employment Equality (Age) Regulations (NI) 2006 (Age Regs) reg 25; Disability Discrimination Act 1995 
(DDA) s16A. 

51 

 
 
 
 
 
 
 
 
 
 
 
Employment Tribunal Disposals, 2016-19147 

Year 
Disability discrimination 
Race discrimination 
Age discrimination 
Religion/ belief discrimination 
Sexual orientation discrimination 

2016-17 

2017-18 

2018-19 

3 352 
1 656 
806 
336 
179 

3 649 
1 684 
1 732 
386 
200 

4935 
2346 
1917 
504 
329 

The following tables indicate the outcome of cases disposed of by the employment tribunals 
in 2016-19. The very low rate of success and high rates of settlement are noteworthy. 148 
High  rates  of  settlement  may  reflect  an  unwillingness  to  pay  the  additional  hearing  fee 
(from July 2013 to July 2017), as well as the work of ACAS, which provides a free voluntary 
conciliation service.  

Outcome of Employment Tribunal cases, 2016-17149 

Nature of Claim 

Disability discrimination 
Race discrimination 
Age discrimination 
Religion/ 
discrimination 
Sexual 
discrimination 

orientation 

belief 

No  of 
claims 

3 352 
1 656 
806 
336 

Withdrawn 

Formally 
settled 

Full hearing 

20 % 
23 % 
24 % 
23 % 

42 % 
36 % 
35 % 
36 % 

Successful  Unsuccessful 
11 % 
16 % 
13 % 
13 % 

4 % 
3 % 
2 % 
3 % 

179 

35 % 

35 % 

4 % 

11 % 

Outcome of Employment Tribunal cases, 2017-18150 

Nature of Claim 

Disability discrimination 
Race discrimination 
Age discrimination 
Religion/ 
discrimination 
Sexual 
discrimination 

orientation 

belief 

No  of 
claims 

3 649 
1 684 
1 732 
386 

Withdrawn 

Formally 
settled 

Full hearing 

19 % 
18 % 
27 % 
22 % 

40 % 
34 % 
18 % 
32 % 

Successful  Unsuccessful 
2 % 
2 % 
1 % 
4 % 

4 % 
3 % 
1 % 
3 % 

200 

20 % 

38 % 

4 % 

2 % 

Outcome of Employment Tribunal cases, 2018-19151 

Nature of Claim 

Disability discrimination 
Race discrimination 
Age discrimination 

No  of 
claims 

4935 
2346 
1917 

Withdrawn 

Formally 
settled 

Full hearing 

24 % 
26 % 
49 % 

37 % 
31 % 
21 % 

Successful  Unsuccessful 
8 % 
13 % 
5 % 

3 % 
3 % 
1 % 

147  Source Ministry of Justice annual statistics and Employment Tribunal Statistics, available at: 

https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-
october-to-december-2018. 

148  Totals do not amount to 100 % as a varied number of cases were subject to other forms of disposal such as 

dismissed without full trial; struck out (not at a hearing); and dismissed at a preliminary hearing.  

149  Source Ministry of Justice annual statistics and Employment Tribunal Statistics, available at: 

https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-
october-to-december-2017. 

150  Source Ministry of Justice annual statistics and Employment Tribunal Statistics, available at: 

https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-
october-to-december-2018. 

151  Source Ministry of Justice annual statistics and Employment Tribunal Statistics, available at: 

https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-october-to-december-2019. 

52 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Religion/ 
discrimination 
Sexual 
discrimination 

belief 

orientation 

504 

329 

24 % 

32 % 

25 % 

33 % 

3 % 

2 % 

11 % 

7 % 

d) 

Registration of discrimination cases by national courts 

In the UK, discrimination cases are registered as such by national courts. The ground of 
discrimination is recorded and cases are available to the public.  

6.2  Legal standing and associations (Article 7(2) Directive 2000/43, Article 9(2) 

Directive 2000/78) 

a) 

Engaging in proceedings on behalf of victims of discrimination (representing them) 

In  the  UK,  associations/organisations/trade  unions  are  not  entitled  to  act  on  behalf  of 
victims of discrimination because the only persons who can bring any claims are those to 
whom the non-discrimination duties are owed.152 Associations may support and assist, (for 
example, they may fund or provide legal advice or representation) but may not engage in 
litigation  on  behalf  of,  victims  of  discrimination.  Further,  as  regards  judicial  review 
proceedings, any legal or natural person with ‘sufficient interest’ in a matter may bring a 
claim  whether  in  NI,  England  and  Wales  or  Scotland;  the  exact  approaches  to  judicial 
review vary across these jurisdictions but the test for standing is materially similar.  

b) 

Engaging  in  proceedings  in  support  of  victims  of  discrimination  (joining  existing 
proceedings) 

In the UK, associations/organisations/trade unions are entitled to act in support of victims 
of  discrimination  (for  example  by  providing  legal  advice  or  representation),  as 
organisations may do that which they are not  prohibited to do and no law prohibits the 
provision of support to litigants. There is scope for intervention in litigation by bodies or 
persons recognised by the court hearing the litigation as appropriate to intervene. NGOs 
have a record of intervention in equality cases. For example, in 2017 Stonewall intervened 
in  a  case  on  transgender  rights153  and  the  Equality  and  Human  Rights  Commission 
intervened  in  the  case  brought  by  the  trade  union  Unison  challenging  the  imposition  of 
tribunal  fees  in  July  2017.154  The  various  rules  of  civil  procedure  and  common  law 
precedent  which  regulate  proceedings  in  UK  courts  and  employment  tribunals  limit  the 
circumstances  in  which  associations  may  intervene  in  an  ongoing  case  as  independent 
parties  in  support  of  a  claimant.  The  rules  of  procedure  vary  across  the  jurisdictions 
(England and Wales, Scotland and Northern Ireland), but the test for standing is materially 
similar. 

c) 

Actio popularis 

In the UK, national law allows associations/organisations/trade unions to act in the public 
interest  on  their  own  behalf,  without  a  specific  victim  to  support  or  represent  (actio 
popularis) only in limited circumstances. 

The  rules  of  procedure  vary  across  the  jurisdictions  (England  and  Wales,  Scotland  and 
Northern Ireland), but in each jurisdiction associations / organisations / trade unions may 
act  in  the  public  interest  on  their  own  behalf,  without  a  specific  victim  to  support  or 

152  See for example, Court of Appeal, R (MM) v SSWP [2013] EWCA Civ 1565, 04.12.2013, available at: 

www.bailii.org/ew/cases/EWCA/Civ/2013/1565.html. 

153  Court of Appeal, In the matter of M [2017] EWCA Civ 2164 20.12.2017, available at: 

www.bailii.org/ew/cases/EWCA/Civ/2017/2164.html. 

154  Supreme Court, R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51, available at: 

https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf. 

53 

 
 
 
 
 
 
 
 
 
 
 
 
 
represent (actio popularis), only where the association etc. has a ‘sufficient interest’ (locus 
standi) in the matter in dispute to bring a claim for Judicial Review of a decision, action or 
failure  to  act  of  a  public  authority  (such  claims  being  available  only  against  public 
authorities).155  This  requirement  of  sufficient  interest  has  been  given  a  generous 
interpretation in recent years by the UK courts and trade unions, NGOs and the  Equality 
Commissions  have  brought  important  actions  against  public  authorities  through  judicial 
review proceedings, such as R (on the application of UNISON) v Lord Chancellor, the case 
challenging the imposition of tribunal fees, heard by the Supreme Court in July 2017.156  

There  are  no  rules  setting  out  what  type  of  organisation  may  litigate  but,  where  an 
association  etc.  claims  ‘sufficient  interest’  the  court  will  want  to  be  satisfied  that  it  is  a 
suitable claimant as distinct from a ‘busy body’.157 There are no special rules concerning 
the shifting burden of proof in this context. As to remedies, in actio popularis cases these 
generally consist of declarations that the public authority has acted unlawfully and/ or of 
orders that the authority do or cease to do something, but awards of damages are generally 
not  made  (except  where  someone  is  litigating  as  a  victim  of  a  breach  of  European 
Convention rights). There are no differences between GB and NI in this matter. The costs 
of bringing judicial review can be very high.  

d) 

Class action 

In the UK, national law does not allow associations/organisations/trade unions to act in the 
interest of more than one individual victim (class action) for claims arising from the same 
event.  

Organisations cannot bring representative or ‘class’ actions in the name of victims. In this 
respect  rules  of  procedure  across  the  UK  may  not  be  fully  compliant  with  the  directives 
(Articles  7(2)/9(2))  and  does  not  follow  the  Commission  2013  Recommendation  on 
Collective Redress Procedural. Case management mechanisms exist to hear representative 
or  group  actions,  though  each  individual  makes  an  individual  claim.  Section  24  of  the 
Equality Act 2006158 permits the EHRC to seek injunctive relief to prevent a person from 
committing an unlawful act (see, similarly, RRO Article 59, FETO Article 41). This power is 
not used in practice.  

6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78) 

In  the  United  Kingdom,  national  law  requires  a  shift  of  the  burden  of  proof  from  the 
complainant to the respondent. 

All UK anti-discrimination legislation provides for a shift of the burden of proof in relation 
to each of the grounds of discrimination, either (in GB) across the material scope of the 
EqA or (in NI) in relation to all of the activities considered to be within the scope of the 
directives.159 By way of example, Section 136 EqA provides that, ‘If there are facts from 
which the court could decide, in the absence of any other explanation, that a person (A) 
contravened the provision concerned, the court must hold that the contravention occurred’ 
unless  A  shows  that  s/he  did  not  contravene  the  provision.160  DDA  Section  17A;  FETO 

155  Senior Courts Act 1981 (England and Wales) S31(1); Court of Session Act 1988 (Scotland) s27B; and Rules 

of the Court of Judicature (Northern Ireland) Order 53(5). 

156  Supreme Court, R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51, available at: 

https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf. 

157  (R v Secretary of State for the Environment ex p Rose Theatre Trust) Queen’s Bench Division [1990] 1 All 

ER 754; [1990] 1 QB 504, 17.07.1989. 

158  Equality Act 2006, 16.02.2006, available at: www.legislation.gov.uk/ukpga/2006/3/contents. 
159  The shift of the burden of proof does not apply in cases under the RRO where the alleged discrimination is 
on grounds of colour or nationality, in cases under the FETO for activities outside art. 3(2B) and in cases 
under the DDA other than under Part II or employment services (s.21A).  

160  This does not apply to the very limited number of criminal offences created by the Act (s136(5)). 

54 

 
 
 
 
 
 
 
 
 
Articles  38A  and  40A,  RRO  Articles  52A  and  54B;  SOR,  Regulations  35  and  38  and  Age 
Regs Regulations 42 and 45 are in materially similar terms. 

6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) 

In the UK, there are legal measures of protection against victimisation. 

The EqA, which applies in GB across all the protected grounds, prohibits the subjection to 
a detriment of any person because s/he has, or is believed to have, done a protected act, 
or because it is thought that s/he may do such an act (Section 27). ‘Protected acts’ are 
then  defined  by  reference  to  bringing  proceedings,  giving  evidence  or  information  in 
connection with proceedings, doing any other thing for the purposes of or in connection 
with  the  discrimination  legislation  or  making  an  allegation  of  its  breach.  There  is  an 
exception where both evidence is given or an allegation made in bad faith and is false. The 
same rules concerning the burden of proof apply to victimisation as to discrimination. 

In NI, the provision made by FETO, the RRO, DDA, SOR and Age Regs is broadly similar, 
except that victimisation requires ‘less favourable treatment’ because the person victimised 
has  done,  or  is  thought  to  have  done  or  be  about  to  do,  a  protected  act.161  The  EqA 
approach  is  an  improvement  on  that  which  applies  in  NI  because  case  law  has 
demonstrated how difficult it is for an individual to establish that because she/he had done 
one  of  the  protected  acts,  she  or  he  was  treated  ‘less  favourably’,  that  is  to  find  an 
appropriate comparator.162 The NI requirement for a comparator-driven approach may not 
be consistent with that in the directives which state simply that a person should not receive 
‘adverse treatment or adverse consequences as a reaction to a complaint or to proceedings 
aimed at enforcing compliance with the principle of equal treatment’.  

6.5  Sanctions and remedies (Article 15 Directive 2000/43, Article 17 Directive 

2000/78) 

a) 

Applicable sanctions in cases of discrimination – in law and in practice 

The  anti-discrimination  legislation  specifies  the  remedies  available  where  complaints  of 
discrimination or harassment are upheld by a court or tribunal.163 The same remedies are 
available against public sector and private sector respondents.  

By far the most common remedy in practice is the award of damages, which are calculated 
as  in  civil  proceedings  for  tort,  and  may  include  ‘compensation  for  injury  to  feelings’ 
whether or not damages are awarded for any other reason.  

In addition to compensation, other potential remedies are a declaration of the rights of the 
parties or recommendations to protect the position of the complainant. The EqA provides 
(Section 124(3)) that: ‘An appropriate recommendation is a recommendation that within 
a  specified  period  the  respondent  takes  specified  steps  for  the  purpose  of  obviating  or 
reducing  the  adverse  effect  on  the  complainant’164  Section  124(7)  provides  that,  ‘If  a 
to  comply  with  an  appropriate 
respondent 
recommendation  the  tribunal  may—  (a)  if  an  order  was  made  under  subsection  (2)(b), 
increase the amount  of compensation to be paid; (b) if no such  order was made, make 
one.’  

fails,  without  reasonable  excuse, 

161  DDA s55; RRO Art 4; FETO Art 3(4); SOR 2003 reg 4; Age Regs reg 4. 
162  See, for example, Court of Appeal, Aziz v Trinity Taxis, [1988] QB 463 26.02.1988, available at: 

www.bailii.org/ew/cases/EWCA/Civ/1988/12.html and House of Lords Chief Constable of the West Yorkshire 
Police v Khan, [2001] IRLR 830, 11.10.2001, available at: www.bailii.org/uk/cases/UKHL/2001/48.html. 
163  EqA ss119, 124-126, 132-143, 139; DDA s17A & Sch 3; RRO Art 53; FETO Art 39; SOR 2003 reg 36, Age 

Regs reg 43. 

164  The power to make recommendations extending beyond the respondent’s treatment of the claimant was 

repealed under the Deregulation Act 2015 from 01.10.2015. 

55 

 
 
 
 
 
 
 
 
 
 
 
 
In  NI,  except  under  FETO,  tribunals  may  only  make  recommendations  to,  ‘obviate  or 
reduce  the  adverse  effect  on  the  complainant  of  any  act  of  discrimination  to  which  the 
complaint relates’, although the Fair Employment Tribunal has the additional power, when 
upholding  a  complaint,  to  make  a  recommendation  that  the  respondent  take  action  to 
prevent or reduce the adverse effect on a person other than the complainant (the author’s 
emphasis)  of  any  unlawful  discrimination  or  harassment  to  which  the  complaint  relates. 
None of the legislation gives a tribunal the power to order a respondent to hire, promote 
or reinstate (after dismissal) the complainant or to take any steps to prevent discrimination 
in future. 

b) 

Compensation – maximum and average amounts 

There is no upper limit to the amount of compensation that can be awarded. In some cases, 
awards in excess of EUR 1 million have been made to successful claimants.165 In the vast 
majority of cases, however, awards are much more modest (see the tables below, which 
refer to tribunal awards in England, Wales and Scotland). Although some of the maximum 
awards  made  have  increased,  the  average  level  of  awards  continues  to  fall  with  the 
exception  of  age  discrimination  awards.  The  highest  award  in  a  discrimination  claim  in 
2017-18 was GBP 416 015 (EUR 451 980) which was awarded for disability discrimination. 
Figures are all from the Ministry of Justice Tribunal statistics quarterly reports.166 

Employment tribunal awards age 2014-2019 

Year 
2014-15 
2015-16 
2016-17 
2017-18 
2018-19 

Average award  Median award 

Maximum award 

GBP 11 211 
GBP 9 025 
GBP 35 663 
GBP 6 796 
GBP 26 148 

GBP 7 500 
GBP 8 417 
GBP 15 198 
GBP 6 184 
GBP 12 365 

GBP 28 428 
GBP 16 263 
GBP 154 309 
GBP 10 432 
GBP 172 070 

Employment tribunal awards disability 2014-2019 
Average award  Median award 

Maximum award 

Year 
2014-15 
2015-16 
2016-17 
2017-18 
2018-19 

GBP 17 319 
GBP 21 729 
GBP 31 988 
GBP 30 698 
GBP 28 371 

GBP 8 646 
GBP 11 309 
GBP 10 235  
GBP 16 523 
GBP 12 156 

GBP 239 913 
GBP 257 127 
GBP 302 258  
GBP 242 130 
GBP 416 015 

Employment tribunal awards race 2014-2019 

Year 
2014-15 
2015-16 
2016-17 
2017-18 
2018-19 

Average award  Median award 

Maximum award 

GBP 17 040 
GBP 14 185  
GBP 36 853  
GBP 34 322 
GBP 12 487 

GBP 8 025 
GBP 13 760  
GBP 13 141  
GBP 11 299 
GBP 7 882 

GBP 209 188 
GBP 43 735  
GBP 456 464  
GBP 124 979 
GBP 33 660 

Employment tribunal awards religion/belief 2014-2019 

Year 
2014-15 
2015-16 
2016-17 
2017-18 
2018-19 

Average award  Median award 

Maximum award 

GBP 1 080 
GBP 19 647 
GBP 20 344 
GBP 5 074 
GBP 4 767 

GBP 1 080 
GBP 16 174 
GBP 12 045 
GBP 5 696 
GBP 1 500 

GBP 1 080 
GBP 45 490 
GBP 74 648 
GBP 6 846 
GBP 12 000 

165  Court of Appeal, Chagger v Abbey National plc [2009] EWCA Civ 1202, [2010] ICR 397, [2010] IRLR 47, 

13.11.2009, available at: www.bailii.org/ew/cases/EWCA/ Civ/2009/1202.html. 

166  Source Ministry of Justice annual statistics and Employment Tribunal Statistics 

https://www.gov.uk/government/collections/tribunals-statistics. 

56 

 
 
 
 
 
 
 
 
Employment tribunal awards sexual orientation 2014-2019 

Year 
2014-15 
2015-16 
2016-17 
2017-18 
2018-19 

Average award  Median award 

Maximum award 

GBP 17 515 
GBP 20 192 
GBP 6 026 
GBP 12 550 
N/A 

GBP 6 000 
GBP 20 192 
GBP 6 314 
GBP 12 550 
N/A 

GBP 80 783 
GBP 20 192 
GBP 8 460 
GBP 24 100 

Most successful discrimination cases result at least in an award of compensation for injury 
to  feelings.  In  2002,  the  Court  of  Appeal167  fixed  a  wide  range  for  injury  to  feelings 
compensation – from EUR 690 to EUR 35 000 (GBP 500 to GBP 25 000) - divided into three 
bands  depending  on  the  seriousness  of  the  case.168  An  award  can  include  aggravated 
damages to take account of the way the respondent treated the complainant or conducted 
their case. More recent case law suggests that the appropriate brackets now range from 
about EUR 1 000 to EUR 42 000 (GBP 660 to GBP 33 000).169 

County/sheriff courts, in addition to the power to award damages (including damages for 
injury to feelings and aggravated damages), have all of the powers they would have in any 
other  action  in  tort  (also  called  ‘delict’  in  Scotland)  or  for  breach  of  statutory  duty  (in 
Scotland  ‘reparation’  of  statutory  duty).  Levels  of  compensation  in  county/sheriff  court 
claims are generally lower than in the  employment tribunals (primarily because in most 
cases the victim’s actual loss is likely to be less) and there is little evidence that the courts 
often use their powers to issue injunctions or other orders regulating the relationship of 
the parties. There are no reported cases of which the author is aware in which the court 
has ordered the defendant to take any measures to prevent future discrimination.  

c) 

Assessment of the sanctions 

There  are  concerns  that  the  existing  remedies  do  not  meet  the  standard  of  ‘effective, 
proportionate and dissuasive’ set by the directives. Arguably, this is intrinsic in a scheme 
in which remedies are based on the principle of restitution, which is concerned to put the 
victim  in  the  position  s/he  would  have  been  had  the  act  of  discrimination  not  been 
committed. Of course, the payment of damages could have a deterrent effect, but the fact 
that  certain  organisations  are  repeatedly  subject  to  discrimination  proceedings  suggests 
that more ‘dissuasive’ sanctions are required. The repeal by the Deregulation Act 2015 170 
of the power to make recommendations extending beyond the respondent’s treatment of 
the claimant further weakened the effectiveness of available sanctions.  

Adverse  media  publicity  following  a  successful  complaint,  in  particular,  of  race 
discrimination, can often be a more effective and dissuasive sanction than any formal order 
by a court or tribunal. In practice, it is the fear of adverse publicity that often influences 
respondents to settle complaints in advance of a hearing; the equality bodies have used 
the negotiations to settle cases as a means of securing agreement by respondents to take 
action  to  prevent  future  acts  of  discrimination.  The  effectiveness  of  such  agreements 
depends, of course, on how well they are monitored once the ink is dry. 

There  is  nothing  in  the  UK  anti-discrimination  legislation  that  directly  penalises 
organisations found persistently to discriminate, for example by excluding them from the 
opportunity to be awarded government contracts. The  Equality Commissions are able to 
use  their  powers  of  formal  investigation  to  investigate  organisations  they  believe  are 

167  Court of Appeal, Vento v Chief Constable of West Yorkshire Police (No.2), [2003] IRLR 102, 20.12.2002, 

available at: www.bailii.org/ew/cases/EWCA/Civ/2002/1871.html. 

168  These guidelines are applicable across the UK. 
169  Employment Appeal Tribunal, Da'Bell v NSPCC, [2010] IRLR 19 and Cadogan Hotel v Ozog, (2014) 

UKEAT/0001/14, [2014] EqLR 691, 15.05.2014, available at: 
www.bailii.org/uk/cases/UKEAT/2014/0001_14_1505.html. 

170  Deregulation Act 2015, 26.03.2015, available at: www.legislation.gov.uk/ukpga/2015/20/contents. 

57 

 
 
 
 
 
 
 
 
 
discriminating and, where they are satisfied that unlawful acts have been committed, can 
serve binding non-discrimination notices requiring organisations to stop discriminating and 
to  take  action  by  specified  dates  to  prevent  discrimination  from  recurring.  These  same 
bodies  can  apply  to  the  county/sheriff  court  for  an  injunction  to  prevent  discrimination 
occurring.  

FETO  does  contain  sanctions  on  employers,  including  exclusion  from  public  authority 
contracts, not for persistent discrimination but for failure to meet statutory reporting and 
workforce monitoring requirements, or for failure to comply with ECNI directions related 
to  affirmative  action;  most  commentators  regard  these  as  having  a  greater,  long-term 
dissuasive impact than the sanctions available following successful litigation. 

58 

 
 
 
 
7 

a) 

BODIES FOR THE PROMOTION OF EQUAL TREATMENT (Article 13 Directive 
2000/43) 

Bodies designated for the promotion of equal treatment irrespective of racial/ethnic 
origin according to Article 13 of the Racial Equality Directive 

The Equality and Human Rights Commission 

The Equality and Human Rights Commission (EHRC) was established by the Equality Act 
2006.  It  is  a  single  equalities  and  human  rights  body  for  GB.  It  has  responsibility  for 
promoting equal treatment on the grounds of race/ethnicity in GB and is the designated 
body for GB in relation to Article 13 of Directive 2000/43/EC. The Commission has devolved 
authorities  in  Wales  and  in  Scotland  and  there  is  a  Scottish  Human  Rights  Commission 
which shares the human rights remit of the EHRC in Scotland. 

The Equality Commission for Northern Ireland (ECNI)  

The Equality Commission for Northern Ireland (ECNI) was established under the Northern 
Ireland Act 1998 (Section 73) to take over the functions of the predecessor bodies. This 
meant that the ECNI has duties and powers comparable to the EHRC in relation to race, 
religious  belief  and  political  opinion,  sex  and  disability  and,  now,  since  the  NI  Sexual 
Orientation Regulations (Regulations 30–32) and Part 5 of the Age Regs, many of the same 
powers and duties in relation to sexual orientation and age. It therefore has responsibility 
for promoting equal treatment on the grounds of race/ethnicity in NI and is the designated 
body for NI in relation to Article 13 of Directive 2000/43/EC. 

b) 

Political, economic and social context of the designated body 

There is generalised political support for equality, with a House of Commons Women and 
Equalities Select Committee  created in 2015 to examine the  Government’s performance 
on equalities. The committee has recently undertaken enquiries on sexual harassment of 
women  and  girls  in  public  places  and  in  the  workplace,  older  people  and  employment, 
fathers and the workplace, and tackling inequalities faced by Gypsy, Roma and Traveller 
communities.  

However,  the  Government  commitment  to  equality  is  not  reflected  in  terms  of  financial 
support for the EHRC and ECNI. Although the cuts can be seen in the context of cuts to 
many public services, these cuts are disproportionate compared to other public bodies.  

In  terms  of  popular  debate,  there  is  a  mixed  picture.  Some  elements  of  the  press  are 
critical  of  public  spending  on  organisations  such  as  the  Commission,  and  the  political 
context of austerity shows that those with certain protected characteristics are significantly 
adversely impacted by policy decisions taken between 2010 and 2017.171 At the same time, 
there  is  considerable  public  support  for  equality  and  diversity.  Many  workplaces  are 
governed by the Public Sector Equality Duty as well as sectoral equality standards, which 
means that many organisations operate in an environment in which equality concerns are 
formally recognised.  

171  See EHRC report: Distributional results for the impact of tax and welfare reforms between 2010 and 2017, 

modelled in the 2021/22 tax year, available at: 
https://www.equalityhumanrights.com/sites/default/files/impact-of-tax-and-welfare-reforms-2010-2017-
interim-report_0.pdf. 

59 

 
 
 
 
 
 
 
 
 
 
 
c) 

Institutional architecture  

GB 
In GB, the designated body forms part of a body with multiple mandates. The EHRC has a 
mandate as a national human rights institution and is recognised as such by the UN. 

The  EHRC  structures  its  equality  and  non-discrimination  work  by  theme  (for  example, 
access  to  justice;  education;  employment)  rather  than  by  creating  specific  services  for 
non-discrimination or for different equality grounds.  

NI  
In  NI,  the  designated  body  does  not  form  part  of  a  body  with  multiple  mandates.  The 
Equality Commission for Northern Ireland has an equality mandate and the human rights 
mandate is held by the Northern Ireland Human Rights Commission (NIHRC).  

The  ECNI  structures  its  equality  and  non-discrimination  mandate  through  strategic 
priorities rather than by equality strand.  

d) 

Status of the designated bodies – general independence 

i) 

Status of the bodies 

GB The EHRC is a statutory non-departmental public body, which operates independently 
of Government. The Board of Commissioners is appointed by the Minister for Women and 
Equalities.  The  appointment  process  is  not  fully  transparent,  in  that  little  information  is 
available  on  the  criteria  applied  by  the  Secretary  of  State  in  selecting  members  of  the 
Commission 

The Commission is funded by the Government. Funding is determined by the designated 
Secretary of State out of his or her departmental budget.  

The  Board  of  Commissioners  is  responsible  for  strategic  oversight.  Management  of  the 
Commission’s operations is delegated to the CEO and the Commission’s staff, who recruit 
and manage the staff.  

The  EHRC  is  accountable  to  the  Secretary  of  State,  to  whom  it  reports  annually.  These 
reports  are  laid  before  Parliament,  to  ensure  that  the  Commission  has  some  link  to 
parliamentary  processes.  Members  of  Parliament  can  choose  to  stage  a  debate  on  the 
contents of the report, but this rarely if ever happens. In addition, the Joint Committee on 
Human Rights of the UK Parliament has the ability to inquire into the work of the EHRC 
and its relationship to the Secretary of State.  

NI The ECNI is a non-departmental public body. Its sponsor Department is the Office of 
the  First  and  Deputy  First  Minister  which  carries  responsibilities  for  equality  policy  and 
legislation in the Northern Ireland Executive. Members of the ECNI are appointed by the 
Secretary of State for Northern Ireland to serve for a fixed term. As with the EHRC, the 
appointment process is not fully transparent, in that little information is available on the 
criteria  applied  by  the  Secretary  of  State  in  selecting  members  of  the  Commission. 
Management of the Commission’s operations is led by the Chief Executive and Commission 
staff.  

Funding is determined by the designated Secretary of State out of his or her departmental 
budget. The ECNI has responsibility for the recruitment and management of staff.  

The  ECNI  reports  annually  to  the  designated  Secretary  of  State.  These  reports  are  laid 
before  Parliament,  to  ensure  that  the  Commission  has  some  link  to  parliamentary 
processes. Again, as with the EHRC, this rarely generates active parliamentary debate. In 

60 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
addition, committees of the UK Parliament have the ability to inquire into the work of the 
ECNI and its relationship with the Secretary of State, although so far this has not taken 
place to any significant degree. 

ii) 

Independence of the bodies 

The EHRC and ECNI  operate independently  of  the UK, Scottish and  Welsh  Governments 
and  the  Northern  Ireland  Executive.172  Although  funded  by  the  Government,  as  non-
departmental public bodies they are separate and independent of Government and do not 
carry out Government business or perform their functions on behalf of the Government. In 
the professional opinion of the author the independence of the bodies is effective.   

e)  Grounds covered by the designated bodies 

The EHRC covers the protected grounds of age, disability, gender reassignment, marriage 
and  civil  partnership,  pregnancy  and  maternity,  race,  religion  or  belief,  sex  and  sexual 
orientation.  The  ECNI  covers  age,  disability,  race,  religion  and  political  opinion,  sex  and 
sexual orientation. They therefore cover all the protected grounds covered by Directives 
2000/43/EC and 2000/78/EC, as well as nationality (which is included within ‘race’).  

Both equality bodies organise their work by theme. Both equality bodies undertake reviews 
to ensure that the all strands are accorded appropriate levels of attention.  

Organisation by theme means that it is impossible to assess whether equivalent attention 
is given to all grounds; and it is difficult to tell whether this would be appropriate in any 
event.  In  its  review  of  its  strategic  plan,  the  EHRC  noted  that  religion  or  belief,  sexual 
orientation and transgender status were relatively less visible in terms of the number of 
projects that are relevant to them, the scale of the projects which involve them and/or the 
extent to which the protected characteristic is a significant element of a project. However, 
given  the  current  priorities,  the  variation  in  levels  of  attention  is  not  necessarily 
inappropriate and the focus of work varies over time.  

f) 

Competences of the designated bodies – and their independent exercise 

i) 

Independent assistance to victims 

In Great Britain and Northern Ireland, the Equality Commissions have the competence (if 
not necessarily the resources) to provide independent assistance to victims, for example 
by providing legal assistance to victims of discrimination, intervening in legal proceedings 
and making applications to court for injunctions. 

Individual advice and support on discrimination is provided by the Equality Advisory and 
Support Service (EASS), a Government-funded helpline which is independent of the EHRC. 
The helpline, with a budget of around EUR 2.2 million (GBP 2 million) and around 30 staff, 
advises  and  assists  individuals  on  issues  relating  to  equality  and  human  rights,  across 
England, Scotland and Wales. It supports individuals to resolve their issue using alternative 
informal dispute resolution and does not provide legal advice. However, EASS refers cases 
to the Commission which it thinks might be strategic. 

The Commissions provide assistance in an independent manner. However, budget cuts to 
the Commissions’ budgets mean that the level of resource is insufficient for them to fulfil 
their general mandate in an optimal manner.  

ii) 

Independent surveys and reports 

172  See Northern Ireland Act 1998, para 12 Schedule 8; see Equality Act 2006, para 42 Schedule 1.  

61 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
In the UK, the designated bodies do have the competence to conduct independent surveys 
and publish independent reports. Details of investigations and inquiries can be found on 
the Commissions’ websites and include investigations on housing and disabled people; and 
preventing deaths in detention of adults with mental health conditions.173 

In the author’s opinion, this competence is effectively exercised in an independent manner, 
in practice.  

iii)  Recommendations 

In  the  UK,  the  designated  bodies  have  the  competence  to  issue  independent 
recommendations on discrimination issues. This competence is exercised in an independent 
manner. Where the activities  occur, they  can be effective.  However, funding constraints 
mean that this power is not used very often in practice.  

iv)  Other competences 

The  EHRC  engages  in  the  promotion  of  good  practice,  policy  advice  and  guidance  and 
awareness raising. It maintains a research database and a Religion or Belief Network. The 
Network was started in 2009 to develop the EHRC’s knowledge of research on the religion 
or  belief  protected  characteristic  and  also  to  publicise  forthcoming  events  to  Network 
members.  The  key  goals  are  now  to  publicise  new  publications  and  forthcoming  events 
amongst  members.  The  EHRC  also  provides  advice  and  guidance  on  issues  such  as 
reasonable adjustments for disabled people.  

The  provision  of  guidance  and  advice,  commissioning  research  and  creation  of  briefing 
papers etc. are all undertaken effectively.  

g) 

Legal standing of the designated bodies 

In the United Kingdom, the designated bodies do not have legal standing to:  

● 

bring discrimination complaints (on behalf of identified victims).174  

In the United Kingdom, the designated bodies do have legal standing to:  

● 
● 
● 

bring discrimination complaints (on behalf of non-identified victims) to court;  
bring discrimination complaints ex officio to court;  
intervene in legal cases concerning discrimination, for example as amicus curiae.  

Section 30 EqA 2006 makes explicit statutory provision in respect of the EHRC’s ability to 
apply for judicial review and to intervene in court proceedings that relate to discrimination. 
The ECNI has similar powers and functions as the EHRC as regards discrimination.175  

The  EHRC  has  powers  to  bring  proceedings  in  relation  to  discriminatory  advertisements 
and  instructions  or  inducement  to  discriminate  and  to  take  enforcement  action  against 
public authorities which fail to comply with their positive duties.  

h)  Quasi-judicial competences 

In the UK, the bodies are not quasi-judicial institutions. 

173  EHRC: https://www.equalityhumanrights.com/en/our-legal-action/inquiries-and-investigations; ECNI: 

https://www.equalityni.org/Investigations. 

174  See Section 6.2a above. 
175  The absence of such an explicit power to intervene in court proceedings in the legislation establishing the 
Northern Irish Human Rights Commission required a decision by the House of Lords to confirm that the 
Commission did have this power: see House of Lords, In re the Northern Ireland Human Rights Commission 
[2002] UKHL 25, [2002] NI 236 20.06.2002, available at: www.bailii.org/uk/cases/UKHL/2002/25.html. 

62 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
i) 

Registration by the bodies of complaints and decisions 

In  the  UK,  the  bodies  do  not  register  the  number  of  complaints  of  discrimination  made 
and/or decisions (by ground, field, type of discrimination, etc.) because they do not receive 
complaints  and  make  decisions  as  such.  They  do  provide  evidence  of  their  activities  in 
Annual Reports.  

j) 

Stakeholder engagement 

In the UK, the designated bodies engage with stakeholders as part of implementing their 
mandate. The EHRC engages with civil society associations, business, employer and service 
provider  networks,  public  bodies,  local  government  entities,  trades  unions,  and  ACAS 
(Advisory,  Conciliation  and  Arbitration  Service).  The  ECNI  also  works  with  civil  society 
associations, business, employer and service provider networks and organisations, public 
bodies, local government entities and trade unions. 

k) 

Roma and Travellers 

EHRC 
The Equality and Human Rights Commission has made support for Travellers and Roma a 
central part of its legal strategy.176 It has also identified their concerns about housing and 
discrimination  as  a  significant  part  of  its  policy  agenda  over  the  next  years.  The 
Commission intends to support appropriate cases using both anti-discrimination law and 
the  ECHR  and  to  continue  to  campaign  in  the  media  and  in  the  elected  parliaments  for 
Traveller and Roma rights. It has published several authoritative research publications on 
the treatment of Traveller families in the UK, which can be accessed via the Commission’s 
website. 

ECNI 
The ECNI has also identified Roma and Traveller issues as a priority issue and has worked 
to  develop  a  strategy  for  promoting  equality  for  Travellers  in  education,177  as  well  as 
emphasising Traveller issues in much of its case-work and legal reform campaigning. 

176  See https://www.equalityhumanrights.com/sites/default/files/strategic_plan_-_web_accessible.pdf. 
177  See 

www.equalityni.org/ECNI/media/ECNI/Publications/Delivering%20Equality/MainstreamingequalityforTravelle
rchildreninschools2008.pdf?ext=.pdf. 

63 

 
 
 
 
 
 
 
  
 
 
8 

IMPLEMENTATION ISSUES  

8.1  Dissemination  of  information,  dialogue  with  NGOs  and  between  social 

partners 

a)  Dissemination of information about legal protection against discrimination (Article 10 

Directive 2000/43 and Article 12 Directive 2000/78)  

To a considerable extent the Governments in GB and NI rely on the Equality Commissions 
(including the devolved Commissions in Scotland and Wales) to increase public awareness 
of existing anti-discrimination laws and the directives. The GB EHRC and the ECNI publish 
a  great  deal  of  information  about  current  protection  against  discrimination  which  is 
available in hard copy from the EHRC and the ECNI, and which is also on the EHRC and 
ECNI websites. 

b)  Measures to encourage dialogue with NGOs with a view to promoting the principle of 

equal treatment (Article 12 Directive 2000/43 and Article 14 Directive 2000/78)  

As consultation requires a baseline of information, the steps above have served as a way 
to facilitate consultation with NGOs.  

The  UK  Parliament’s  Women  and  Equalities  Select  Committee  undertakes  inquiries  and 
publishes information about equalities in the UK. Examples of inquiries are ‘The use of non-
disclosure  agreements  in  discrimination  cases’,  ‘Health  and  social  care  and  LGBT 
communities’, ‘Mental health of men and boys’ and ‘Tackling inequalities faced by Gypsy, 
Roma and Traveller communities’.178 

There  exist in the UK a very large number  of  NGOs that represent or support particular 
groups or  communities  or special interests and are concerned to combat discrimination. 
Some  receive  some  financial  support  from  central  or  local  government  while  most  are 
dependent  on  non-government  funding.  There  has  been  nothing  to  indicate  that 
arrangements for consultation or ‘dialogue’ have been initiated in GB or NI specifically to 
meet  the  requirements  of  Article  12;  it  is  more  likely  that  the  greater  attention  paid  to 
NGOs  has  been  to  inform  Government  and  to  seek  to  secure  wider  acceptance  of  its 
policies. 

There are no formal structures for central (or devolved) Government dialogue with NGOs, 
but there are no barriers to such dialogue. Government departments often establish ad-
hoc groups by means of which Ministers or senior officials can consult with NGOs on difficult 
or  controversial  issues.  The  positive  duties  require  public  authorities  to  consult  on  the 
equality impact of their policies and practices, which has encouraged greater engagement 
with civil society and local communities.  

Implementation  of  the  Section  75  positive  duty  in  NI  has  seen  widespread  consultation 
with  community  groups.  In  NI,  NGOs  have  established  themselves  as  significant 
stakeholders  in  any  discussions  on  equality  issues.  They  have  played  an  active  role  in 
consultation on measures to transpose the directives. NGOs act as effective watchdogs of 
the  performance  by  public  authorities  of  their  equality  duties  under  Section  75  of  the 
Northern  Ireland  Act  1998,  which  requires  public  authorities  to  consult  on  the  equality 
impact  of  their  policies  and  practices,  and  many  NGOs  with  specialised  interests,  for 
example in disability issues, are more likely to be listened to within the  equality impact 
assessment carried out by NI public authorities.  

178  See https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-

equalities-committee/.  

64 

 
 
 
 
 
 
 
 
 
 
 
 
c)  Measures to promote dialogue between social partners to give effect to the principle 
of  equal  treatment  within  workplace  practices,  codes  of  practice  and  workforce 
monitoring (Article 11 Directive 2000/43 and Article 13 Directive 2000/78) 

There are no particular measures designed to promote dialogue between social partners.  

In  the  various  consultation  documents  concerning  transposition  of  the  directives  and 
establishment of a single equality body in GB, it appears that one aim of the Government 
has been to reassure business and employers generally that neither the existing nor the 
proposed  legislation  should  be  unduly  burdensome,  that  guidance  and  support  will  be 
available and, more positively, that equality is good for business.  This  message has not 
included a role for trade unions in combating discrimination or promoting equality in the 
workplace,  through  collective  agreements,  joint  working  or  any  other  methods.  Again, 
however, the positive equality duties may have an impact in this respect. 

d) 

Addressing the situation of Roma and Travellers  

Formal  consultation  with  Traveller  groups  is  increasingly  common,  both  at  central 
government  level  and  also  within  the  devolved  administrations  (see,  for  example,  the 
Scottish Government’s Gypsy/ Traveller Strategy).179 Parliament’s Women and Equalities 
Committee, a select committee of the House of Commons, undertook an inquiry on tackling 
inequalities faced by Gypsy, Roma and Traveller communities and reported in 2019.180 The 
term ‘Traveller’ or ‘Gypsy’ in this context would include Roma, whether UK Roma or more 
recent immigrants.  

There  is  no  specific  body  appointed  at  national  level  to  address  Roma  issues,  but  these 
issues  would  fall  within  the  scope  of  the  EHRC  and  there  are  a  number  of  charitable 
organisations  dedicated  to  improving  the  plight  of  Gypsies  and  Travellers  generally  and 
Roma specifically. Among these are the Friends Families and Travellers,181 the Community 
Law Partnership182 the Traveller Movement183 and the Roma Support Group.184 

8.2  Measures to ensure compliance with the principle of equal treatment (Article 

14 Directive 2000/43, Article 16 Directive 2000/78) 

a) 

Compliance of national legislation (Articles 14(a) and 16(a)) 

In the UK, the necessary measures have been taken to ensure that any laws, regulations 
and administrative provisions contrary to the principle of equal treatment are abolished. 
(Article 14(a) of Directive 2000/43 and Article 16(a) of Directive 2000/78). 

It is not unreasonable to assume that there may be laws, regulations or rules contrary to 
the  principle  of  equality  that  are  still  in  force;  nothing  in  the  UK  anti-discrimination 
legislation has the effect of striking out or disapplying primary or secondary legislation.  

However, as part of the transposition process, government departments were required to 
review the legislation for which they are responsible to ensure that any which was contrary 
to the directives’ principles of equal treatment in relation to disability, religion or belief and 
sexual orientation was repealed or amended. That procedure was repeated in respect of 
age. Legislative provisions found contrary to the principle of equal treatment on grounds 

179  www.gov.scot/Topics/People/Equality/gypsiestravellers/strategy. 
180  House of Commons Women and Equalities Committee Seventh Report of Session 2017–19: Tackling 

inequalities faced by the Gypsy, Roma and Traveller communities, available at: 
https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/360/360.pdf. 

181  Friends Families and Travellers: www.gypsy-traveller.org/. 
182  Community Law Partnership: www.communitylawpartnership.co.uk/. 
183  Traveller Movement: travellermovement.org.uk/. 
184  Roma Support Group: romasupportgroup.org.uk. 

65 

 
 
 
 
 
 
 
 
 
 
 
 
of age have been repealed, or retained where they can be objectively justified under the 
provisions of the directive. 

b) 

Compliance of other rules/clauses (Articles 14(b) and 16(b)) 

In  the  UK,  the  necessary  measures  have  been  taken  to  ensure  compliance  with  Article 
14(b) of Directive 2000/43 and Article 16(b) of Directive 2000/78). 

Section 142 EqA provides, in GB, that contractual terms are unenforceable insofar as they 
‘constitute[], promote[] or provide[] for treatment of [a]… person that is of a description 
prohibited  by  this  Act’.  Similar  provision  is  made  by  Section  145  of  the  Act  as  regards 
collectively agreed terms and rules of undertakings. Discrimination in the rules governing 
independent  occupations,  professions,  workers’  associations  or  employers’  associations 
falls within the provisions of the EqA also. The same is true in NI under the various equality 
provisions there in force.185 

The EqA states, however (Schedule 11, paragraph 5), that its prohibitions on discrimination 
related to religion/ belief are without prejudice to Sections 58–60 of the School Standards 
and  Framework  Act  1998  (which  permit  religious  discrimination  in  appointment  and 
dismissal  of  teachers  in  schools  with  a  religious  character,  without  the  need  to  show 
legitimate  aim  or  proportionality  –  see  also  Section  21  of  the  Education  (Scotland)  Act 
1980 (management of denominational schools)). 

185  In particular, Arts 68 and 68A Race Relations (NI) Order 1997 (RRO) applying in respect of contractual and 

collectively agreed terms and rules of undertakings. The corresponding provisions of the Employment 
Equality (Sexual Orientation) Regulations (NI) (SOR) are reg 42 and Sch 4; of Fair Employment and 
Treatment Order 1998 (FETO) Arts 99 and 100A; of the Disability Discrimination Act 1995 (DDA) ss16B and 
16C and of the Employment Equality (Age) Regulations (NI) 2006 (Age Regs) reg 49. 

66 

 
 
 
 
 
 
 
9 

COORDINATION AT NATIONAL LEVEL 

At governmental level in GB there has traditionally been less than complete clarity as to 
which government department was responsible for anti-discrimination measures, and there 
has been a history of constantly shifting responsibility between different departments to 
reflect  the  differing  interests  of  different  ministers.  The  Government  Equalities  Office, 
formed  in  October  2007,  is  an  independent  department  and  has  had  various  ministerial 
sponsors. During 2019 there have been three different holders of the office of Minister for 
Women and Equalities. By the end of 2019, the Minister for Women and Equalities was the 
Secretary of State for International Trade. The Office has responsibility within Government 
for equality strategy and legislation in the UK.186  

There is no anti-racism or anti-discrimination National Action Plan in the United Kingdom.  

186  https://www.gov.uk/government/organisations/government-equalities-office/about. 

67 

 
 
 
 
10  CURRENT BEST PRACTICES 

The positive duties imposed on public authorities by the Public Sector Equality Duty 
(Section 149 EqA) in GB and Section 75 Northern Ireland Act 1998 (in NI) (see 2.3.1). 
The broad coverage in the UK beyond employment and occupation of discrimination 
on grounds of disability, sexual orientation, religion or belief (and, in GB, age) (see 
3.2.6-3.2.10). 
The coverage by the EqA of discrimination on grounds of caste (see 2.1.1). 
Despite  the  recent  budget  cuts,  the  work  of  the  EHRC  and  ECNI  is  strong,  with  a 
significant number of high-quality research reports and investigations published each 
year.  
In  NI,  during  2019  legislation  was  introduced  requiring  the  Secretary  of  State  to 
introduce legislation allowing same-sex marriage and opposite-sex civil partnerships. 
This  legislation,  the  Marriage  (Same-sex  Couples)  and  Civil  Partnership  (Opposite-
sex  Couples)  (Northern  Ireland)  Regulations  2019,  was  introduced  in  December 
2019.187 In 2019, the Civil Partnership (Opposite-sex Couples) Regulations 2019 were 
introduced,  allowing  opposite-sex  couples  the  same  rights  as  same-sex  couples  to 
enter civil partnerships. 

187  The first same-sex marriage took place in February 2020. 

68 

 
 
  
  
  
  
  
 
 
11  SENSITIVE OR CONTROVERSIAL ISSUES 

11.1 Potential breaches of the directives at the national level 

- 

- 

- 

- 

One concern is the wide scope for schools to discriminate against teachers on grounds 
of  religion  which  is,  in  the  author’s  view,  incompatible  with  Article  2  of  Directive 
2000/78/EC (see 4.1).  
There  is  some  concern  over  whether  UK  law  adequately  protects  self-employed 
workers as required by Articles 2 and 3 of Directives 2000/43/EC and 2000/78/EC 
(see 3.2.1). 
There are concerns that the existing remedies do not meet the standard of ‘effective, 
proportionate and dissuasive’ set by the directives. A particular concern is the lack of 
power to make recommendations  extending beyond the respondent’s treatment of 
the claimant. Article 15 Directive 2000/43/EC  and Article 17 Directive 2000/78/EC 
(see 6.5c). 
No  prohibition  of  indirect  discrimination  on  grounds  of  disability  in  NI  (Article  2 
Directives 2000/43/EC and 2000/78/EC).  

11.2 Other issues of concern  

The  decision  of  the  United  Kingdom  to  leave  the  EU  in  the  2016  Referendum  raises  a 
number of concerns for non-discrimination law given that much of the UK law is derived 
from the EU directives.  

Concern has been expressed regarding the impact on the Roma of the UK’s decision to exit 
the  EU,  as  a  result  of  uncertainty  over  the  terms  of  their  residency  and  the  end  of  EU 
funding to support their integration.188 This concern is added to ongoing concerns noted 
above about the difficulties in accessing additional education funding (Pupil Premium) for 
Traveller  children  (see  3.2.8b  above)  and  the  use  of  injunctions  to  bar  Traveller 
encampments. (see 3.2.10a above) 

The  Government’s  policy  of  creating  a  hostile  environment  for  those  with  irregular 
immigration status has had an impact on migrants, including many people who are legally 
resident in the UK.  

Prominent examples include immigrants in the 1960s from Jamaica (named the ‘Windrush 
generation’ after the ship that brought one of the first groups of West Indian migrants to 
the UK) who have not  been able to prove their  right to be in the UK  due to documents 
being lost. Many such individuals have been denied healthcare, lost their jobs and homes, 
been  threatened  with  deportation  and  in  some  cases  deported  and  refused  the  right  to 
return. Their plight was raised by journalists and charities, and the political scandal that 
resulted  led  ultimately  to  the  resignation  of  then  Home  Secretary  Amber  Rudd  in  2018. 
Although  efforts  have  been  made  by  the  government  to  address  the  needs  of  these 
individuals, difficulties continued to be reported throughout 2019. Moreover, in 2019, some 
EU citizens faced difficulties in gaining settled status. It is feared that following the UK exit 
from the EU, those EU citizens without settled status may face similar difficulties to those 
faced by the ‘Windrush’ generation.189  

The hostile environment has led to dismissal of staff who have the right to remain in the 
UK as employers are not satisfied that they have provided the correct proof of status. The 
rules  about  which  documents  are  accepted  are  very  complex  and  are  listed  alongside  a 
threat  that  penalties  apply  if  the  employer  makes  a  mistake.  They  therefore  encourage 
employers to err on the side of caution and refuse employment rather than risk a penalty. 

188  Institute for Public Policy Research (2016) Roma communities and Brexit: Integrating and empowering 

Roma in the UK, available at: www.ippr.org/publications/roma-communities-and-brexit. 

189  See https://www.euractiv.com/section/uk-europe/news/eu-nationals-face-delays-difficulties-with-brexit-

settlement-scheme-new-report-finds/. 

69 

 
 
 
 
 
 
 
 
 
 
The  hostile  environment  also  explains  rules  imposing  liability  on  landlords,  if  they  let 
premises to those with irregular immigration status. The effect is to make employers and 
landlords act as proxy immigration enforcers.  

In 2018 the EHRC published its Is Britain fairer? report,190 examining the state of equality 
and human rights in Britain 2018. Whilst some progress is shown, concerns also persist, 
in particular in relation to disabled people, some ethnic minorities and children from poorer 
backgrounds. A concern is raised that this inequality risks becoming entrenched for future 
generations with these groups being left behind.  

190  EHRC (2018) Is Britain fairer? The state of equality and human rights 2018, available at: 
https://www.equalityhumanrights.com/en/publication-download/britain-fairer-2018. 

70 

 
 
 
12  LATEST DEVELOPMENTS IN 2019 

12.1 Legislative amendments 

Amendments to the Equality Act 2010 are listed with the online version of the Act.191 There 
has been no significant legislative amendment in 2019 for the purpose of this report. 

12.2 Case law 

Disability 

Name of the court: Supreme Court 
Date of decision: 17.12.19 
Name of the parties: National court decision, Williams v Trustees of Swansea University 
Pension & Assurance Scheme & Anor  
Reference number: [2018] UKSC 65  
Address of the webpage: https://www.bailii.org/uk/cases/UKSC/2018/65.html 
Brief summary: Mr Williams was employed by Swansea University for 13 years until his 
retirement on ill health grounds at the age of 38. He satisfied the definition of ‘disability’ 
under  the  Equality  Act  2010.  He  was  a  member  of  the  university  pension  scheme 
throughout his employment. He had worked full time for the first 10 years. He then moved 
to part time for his final three years of work, due to his disabilities. Part of his pension was 
provided on the basis of his final salary (for the years until 2009) and thereafter, until 2013 
on career average earnings. As well as additional entitlements under the provisions for ill 
health early retirement for a lump sum and annuity (which were not in dispute) he was 
also entitled to an enhancement calculated on the basis of his actual salary at the date of 
retirement and this enhanced element was under dispute in the case. Mr Williams claimed 
that  the  basing  of  the  enhancement  on  his  actual  (part-time)  salary  amounted  to  less 
favourable  treatment  under  the  2010  Equality  Act  because  he  was  part-time  as  a 
consequence  of  his  disabilities.  Williams’  argument  was  accepted  by  the  Employment 
Tribunal  but  rejected  on  appeal  by  the  Employment  Appeal  Tribunal  and  the  Court  of 
Appeal. The decision was further appealed to the Supreme Court on the question of the 
meaning of the expression ‘unfavourable treatment’ under the Equality Act 2010.  

The Supreme Court dismissed the appeal. It held that s 15 EqA was not concerned with 
comparisons, but instead with two questions of fact: what was the relevant treatment and 
was  it  unfavourable  to  the  claimant?  The  question  to  be  determined  was  whether  the 
treatment was unfavourable, and the Court held that it was not. In this case, the treatment 
in question was the award of the pension. The reason for giving the relevant enhancement 
of the pension  was because  of his disabilities.  If he had been able to  work full time, he 
would have had no right to the early and enhanced pension payment. Therefore, the award 
could not be said to be unfavourable.  

Name of the court: Court of Appeal 
Date of decision: 26.06.19 
Name of the parties: The Chief Constable of Norfolk v Coffey 
Reference number: [2019] EWCA Civ 1061 
Address of the webpage: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1061.html 
Brief  summary:  Lisa  Coffey,  a  police  constable,  applied  for  a  transfer  to  work  for  a 
different  police  force.  At  the  time  of  her  earlier  employment,  she  underwent  a  medical 
examination  which  indicated  mild  sensorineural  hearing  loss  with  tinnitus.  However,  the 
level of hearing loss did not affect her ability to do the job and she was employed having 
passed a hearing functionality test. Her application for transfer to a new police force was 
rejected,  despite  medical  evidence  that  her  hearing  had  not  deteriorated  and  that  she 
would pass a practical functionality test. The reason for the rejection was that, although 

191  https://www.legislation.gov.uk/ukpga/2010/15/resources. 

71 

 
 
 
 
 
 
 
 
 
she was not disabled at the time, her recruitment would risk increasing the pool of police 
officers who might be restricted in future in terms of the duties they could cover. In effect, 
this was a perception about a risk of future disability. The claimant accepted on the facts 
that her condition did not amount to a disability due to the low level of the impairment, 
but  claimed  that  the  rejection  of  her  application  amounted  to  direct  perception 
discrimination (by assumption), in that the discrimination was because of the employer’s 
perception about her disability. The first level tribunal ruled that she had been subject to 
direct  perception  discrimination,  a  decision  that  was  upheld  by  the  Employment  Appeal 
Tribunal. The case was appealed to the Court of Appeal.  

The Court of Appeal upheld the finding of perception discrimination. The Court of Appeal 
confirmed  that  direct  discrimination  included  discrimination  on  the  basis  of  perception. 
Discrimination  could  be  ‘because  of’  a  characteristic,  whether  the  person  discriminated 
against has the characteristic or not. Here the perception was as to the progressive nature 
of  the  impairment,  with  the  case  confirming  that  progressive  conditions  are  protected 
under the Equality Act 2010.  

Religion  

Name of the court: Court of Appeal 
Date of decision: 27.06.19 
Name  of  the  parties:  R  (on  the  application  of  Z  &  A  v  another)  v  London  Borough  of 
Hackney and Agudas Israel Housing Association Ltd 
Reference number: [2019] EWCA Civ 1099 
Address of the webpage: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1099.pdf 
Brief  summary:  The  Agudas  Israel  Housing  Association  Ltd  provides  social  housing  to 
members of the Orthodox Jewish community. Z was a single mother who required social 
housing. Her name was not put forward to the housing association by Hackney Council as 
she was not from the Orthodox Jewish community. It was not disputed that this was direct 
discrimination  on  religious  grounds,  and  on  grounds  of  race  or  ethnic  origin,  but  the 
question arose as to whether the discrimination was lawful positive action,  on the basis 
that  it  was  a  proportionate  means  to  compensate  a  disadvantaged  community.  The 
Divisional Court1 accepted that there was a correlation between poverty and deprivation 
in the Haredi community and their religion and found that the discrimination was lawful as 
a proportionate means of compensating for that disadvantage. Z appealed.  

The Court of Appeal held that the Divisional Court was entitled to find that the policy was 
proportionate to the aim of compensating disadvantage. On 3 December 2019, permission 
was granted for the decision to be appealed to the Supreme Court.192  

Name of the court: Employment Appeal Tribunal 
Date of decision: 12.02.2019 
Name of the parties: Gan Menachem Hendon Ltd v Ms Zelda De Groen 
Reference number: UKEAT/0059/18/OO 
Address of the webpage: https://www.gov.uk/employment-appeal-tribunal-
decisions/gan-menachem-hendon-ltd-v-ms-zelda-de-groen-ukeat-0059-18-oo  
Brief summary: Ms De Groen was a teacher at a private Orthodox Jewish nursery school 
affiliated to the Chabad Lubavitch Hasidic movement. She was dismissed because she was 
cohabiting with a man (whom she later married). Although the school took the view that 
matters of private life were not its concern, the school had asked the claimant to confirm 
when  asked  that  she  did  not  live  with  her  boyfriend,  even  though  this  was  untrue.  The 
claimant refused to comply with this request and was dismissed. The Employment Tribunal 
held that the nursery had discriminated directly and indirectly against Ms De Groen because 
of  religion. In interviews with the school management leading up to her dismissal  other 

192  https://www.supremecourt.uk/docs/permission-to-appeal-2019-12.pdf. 

72 

 
 
 
 
 
 
 
comments were made which were found by the Employment Tribunal to be discriminatory 
on grounds of sex (e.g. that time was passing for the claimant to have children).  

The Employment Appeal Tribunal upheld the finding of sex discrimination. In  relation to 
religious  discrimination  it  found  that  there  was  no  discrimination.  The  nursery  acted 
because  of  its  own  beliefs,  and  Ms  De  Groen's  refusal  to  live  in  accordance  with  those 
beliefs,  rather  than  because  of  the  beliefs  of  Ms  De  Groen.  Thus,  any  less  favourable 
treatment was because of the beliefs of the employer, and not based on the beliefs of the 
claimant. The employer would have treated anyone who cohabited with a partner outside 
of marriage the same  way, regardless of their religion or belief. Therefore there was no 
less favourable treatment of the claimant in comparison with others with other beliefs.  

The effect of the decision is that the Equality Act 2010 does not prohibit discrimination on 
the basis of the discriminator’s religion or belief. The Employment Appeal Tribunal rejected 
the argument that Ms De Groen was dismissed due to a lack of belief in a religious rule 
forbidding cohabitation. The employer’s concern was with the risk of harm to the reputation 
of the nursery, rather than a free-standing concern that Ms De Groen’s beliefs were not 
the  same  as  its  own.  The  Employment  Appeal  Tribunal  confirmed  that  there  could  be 
discrimination where both parties shared the same religion.  

12.3 Cases brought by Roma and Travellers 

Name of the court: Court of Appeal  
Date of decision: 16.04.2019 
Name  of  the  parties:  R  (on  the  application  of  Gullu)  v  Hillingdon  LBC;  R  (on  the 
application of Ward) v Hillingdon LBC 
Reference number: [2019] EWCA Civ 692  
Address of the webpage: https://www.bailii.org/ew/cases/EWCA/Civ/2019/692.html 
Brief  summary:  Hillingdon  LBC’s  housing  allocation  policy  provides  that,  subject  to 
exceptions, a person who has not been continuously living in the borough for at least 10 
years will not qualify to join the housing register. Two challenges were brought against the 
lawfulness of that policy, on the ground that it is indirectly discriminatory on the ground of 
race; and cannot be justified.  

The  CA  held  that  as  a  whole,  by  imposing  the  ten-year  residence  requirement,  the 
allocation  policy  indirectly  discriminated  against  Irish  Travellers  and  non-UK  nationals 
which was unlawful unless justified, and that the local authority had not shown justification 
for that discrimination.  

Name of the court: High Court, Queen’s Bench Division   
Date of decision: 17.05.2019 
Name of the parties: London Borough of Bromley v Persons Unknown 
Reference number: [2019] EWHC 1675 (QB) 
Address  of  the  webpage:  Not  available  on  BAILII,  but  judgment  available  here: 
https://www.gardencourtchambers.co.uk/news/high-court-rules-against-local-authority-
encampment-ban    
Brief summary: The London Borough of Bromley made an application for an injunction 
against persons unknown to prohibit Gypsies and Travellers from camping on open land 
within their boundaries. A charity known as London Gypsies and Travellers intervened in 
the proceedings. It argued that the injunction created a blanket ban which circumvented 
the  need  to  comply  with  government  guidance  on  the  humane  management  of 
unauthorised camping; the council had failed to comply with its public sector equality duty 
before deciding to seek the injunction; the injunction would disproportionately affect ethnic 
Gypsies and Travellers and constituted unjustified indirect discrimination in breach of s19 
EqA and a violation of their rights protected by Articles 8 and 14 ECHR.  

73 

 
 
 
 
 
 
 
 
The judge refused to grant an order which prohibited unauthorised encampments on any 
of  the  council’s  land.  The  judge  made  clear  her  concerns  about  the  impact  of  wide 
injunctions on the ability of Gypsies and Travellers to pursue their traditional way of life, 
particularly  given  the  shortage  of  lawful  sites  and  the  council’s  failure  to  undertake  an 
equality impact assessment before seeking the injunction.  

74 

 
 
 
 
ANNEX 1: MAIN TRANSPOSTION AND ANTI-DISCRIMINATION LEGISLATION 

Country:  
Date:   

United Kingdom 
31 December 2019 

UK 
Title of the Law: Equality Act 2006  
Abbreviation: EqA 2006 
Date of adoption: 16.02.2006 
Latest relevant amendment: 01.10.2010 
Entry into force: various from 06.04.2007 
Weblink: http://www.legislation.gov.uk/ukpga/2006/3/contents 
Grounds  covered:  sex  (incl.  gender  reassignment,  married/  civilly  partnered  status/ 
pregnancy),  colour,  nationality  (including  citizenship),  ethnic  origins,  national  origins, 
disability, sexual orientation, religion or belief, age 
Civil law 
Material  scope:  Enforcement  and  promotion,  goods  and  services,  housing,  education, 
functions of public authorities. Applies to GB only insofar as it establishes the EHRC. It also 
provides  the  basis  for  the  enactment  in  NI  of  regulations  prohibiting  sexual  orientation 
discrimination outside employment 
Principal  content:  Extended  protection  against  discrimination  on  grounds  of  sexual 
orientation to provision of goods and services, housing, education, public functions. Also 
established the EHRC 

GB 
Title of the Law: Equality Act 2010  
Abbreviation: EqA 
Date of adoption: 08.04.2010 
Latest relevant amendment: 26.03.2015 
Entry into force: 01.10.2010 
Web link: http://www.legislation.gov.uk/ukpga/2010/15/contents  
Grounds  protected:  sex  (incl.  gender  reassignment,  married/  civilly  partnered  status/ 
pregnancy),  colour,  nationality  (including  citizenship),  ethnic  origins,  national  origins, 
disability, sexual orientation, religion or belief, age 
Civil law 
Material  scope:  All  sectors  of  employment  and  employment-related  activities,  access  to 
goods facilities and services (thereby covering most areas of social advantages and social 
protection), disposal and management of premises, education. Applies only to GB 
Principal content: Prohibits direct, indirect discrimination and victimisation, harassment and 
instructions  to  discriminate,  imposes  positive  obligations  on  public  authorities,  provides 
individual rights of redress 

NI 
Title of the Law: Disability Discrimination Act 1995 
Abbreviation: DDA 
Date of adoption: 08.11.1995 
Latest relevant amendments: 01.08.2011 
Entry into force: various dates from November 1995 
Webpage address: 
http://www.legislation.gov.uk/ukpga/1995/50/contents (this is not up to date) 
Grounds covered: disability 
Civil law 
Material  scope:  All  sectors  of  employment  and  employment-related  activities,  access  to 
goods, facilities and services, further and higher education, some aspects of transport. Now 
applies only to NI 
Principal content: Prohibits discrimination and requires reasonable adjustments. Prohibits 
victimisation and instructions to discrimination and provides right to seek legal redress 

75 

 
 
 
 
 
NI 
Title of the Law: Race Relations (NI) Order 1997 
Abbreviation: RRO 
Date of adoption: 19.03.1997 
Latest relevant amendments: 9.07. 2012 
Entry into force: various dates from March 1997 
Web link: www.legislation.gov.uk/nisi/1997/869/contents/made (this is not up to date) 
Grounds covered: race, colour, nationality (including citizenship), ethnic origins, national 
origins and belonging to Irish Traveller community 
Civil law 
Material scope: All  sectors  of employment and employment-related activities, education, 
access to goods facilities and services, disposal and management of premises. Applies only 
to NI 
Principal content: Prohibits direct, indirect discrimination and victimisation, harassment and 
instructions to discriminate. Rights of individual to seek legal redress 

NI 
Title of the Law: Fair Employment and Treatment Order 1998 
Abbreviation: FETO 
Date of adoption: 16.12.1998 
Latest amendments: 10.12.2003 
Entry into force: 01.03.1999 
Web link: www.legislation.gov.uk/nisi/1998/3162/contents 
Grounds covered: religion/ belief/ political belief 
Civil law 
Material scope: All  sectors  of employment and employment-related activities, education, 
access to goods facilities and services, disposal and management of premises. Applies only 
to NI 
Principal content: Prohibits direct, indirect discrimination and victimisation, harassment and 
instructions  to  discriminate,  provides  rights  to  individuals  to  seek  legal  redress,  and 
affirmative action and reporting provisions 

NI 
Title of the Law: Employment Equality (Sexual Orientation) Regulations (NI) 2003 
Abbreviation: SOR 2003 
Date of adoption: 01.12.2003 
Latest relevant amendments: 01.06.2007 
Entry into force: 02.12.2003 
Web  link:  http://www.legislation.gov.uk/nisr/2003/497/contents/made  (this  is  not  up  to 
date) 
Grounds covered: Sexual orientation 
Civil law 
Material  scope:  All  sectors  of  employment,  employment-related  activities,  further  and 
higher education. Applies only to NI 
Principal content: Prohibits direct, indirect discrimination and victimisation, harassment and 
instructions to discriminate. Provides rights to individuals to seek legal redress 

NI 
Title of the Law: Employment Equality (Age) Regulations (NI) 2006 
Abbreviation: Age Regs 
Date of adoption: 14.06.2006 
Latest relevant amendments: 06.04.2011 
Entry into force: 01.10.2006 
Web link: www.legislation.gov.uk/nisr/2006/261/contents/made (this is not up to date) 
Grounds covered: age 
Civil law 

76 

 
 
 
 
Material  scope:  All  sectors  of  employment,  employment-related  activities,  further  and 
higher education. Applies only to NI 
Principal content: Prohibits direct, indirect discrimination and victimisation, harassment and 
instructions to discriminate and provides rights to individuals to seek legal redress 

77 

 
 
ANNEX 2: INTERNATIONAL INSTRUMENTS 

Country:  
Date:   

United Kingdom 
31 December 2019 

Instrument  Date of 

signature  

Date of 
ratificatio
n  

Right of 
individual 
petition 
accepted? 

Derogation
s/ 
reservation
s relevant 
to equality 
and non-
discriminati
on 

04.11.1950  08.03.1951  A derogation 

Yes 

Can this 
instrument 
be directly 
relied upon 
in domestic 
courts by 
individuals? 

Incorporated 
into UK law by 
Human Rights 
Act 1998, 
Northern 
Ireland Act 
1998, 
Scotland Act 
1998 and 
Government 
of Wales Act 
2006. 

from Article 
5(1) to 
permit the 
UK to detain 
foreign 
nationals 
indefinitely 
under the 
Anti-
Terrorism, 
Crime and 
Security Act 
2001 was 
withdrawn 
on 
16.03.2005 
None 

Protocol 12, 
ECHR 

No 

No 

07.11.1997  No 

N/A 

16.09.1968 

20.05.1976 

Yes 

No 

Ratified 
collective 
complaints 
protocol? 
No. 
No 

No 

No 

No 

16.09.1968  20.05.1976 

None 

No 

No 

01.12.1995 

15.01.1998 

None 

No 

No 

78 

European 
Convention 
on Human 
Rights 
(ECHR) 

Revised 
European 
Social 
Charter 

International 
Covenant on 
Civil and 
Political 
Rights 
Framework 
Convention 
for the 
Protection of 
National 
Minorities 
International 
Covenant on 
Economic, 
Social and 
Cultural 
Rights 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Instrument  Date of 

signature  

Date of 
ratificatio
n  

Derogation
s/ 
reservation
s relevant 
to equality 
and non-
discriminati
on 
None 

Right of 
individual 
petition 
accepted? 

Can this 
instrument 
be directly 
relied upon 
in domestic 
courts by 
individuals? 

No  

No 

16.09.1968 

20.05.1976 

Convention 
on the 
Elimination 
of All Forms 
of Racial 
Discrimina-
tion 
ILO 
Convention 
No. 111 on 
Discriminatio
n 
Convention 
on the 
Rights of the 
Child 

Convention 
on the 
Rights of 
Persons with 
Disabilities  

08.06.1999  None 

No 

No 

19.04.1990 

16.12.1991 

No 

No 

A reservation 
applies as 
regards the 
obligation to 
detain 
children and 
adults 
separately  

30.03.2007  08.06.2009  Reservations 

30.03.2007  08.06.2009 

apply as 
regards 
access to the  
military; the 
special 
education of  
children with 
disabilities; 
and 
immigration  

79 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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