Country report non-discrimination : transposition and implementation at national level of Council Directives 2000/43 and 2000/78 : United Kingdom 2022.
Date: 2022-08-25
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 

2022 

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 2021 – 31 December 2021 

2021  Directorate-General for Justice and Consumers 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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ISSN 2599-9176  

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Country report - Non-discrimination – United Kingdom – 2022 

CONTENTS 

3 

3.2.2 

3.1.1 

EXECUTIVE SUMMARY ........................................................................................ 5 
GENERAL LEGAL FRAMEWORK .................................................................. 14 
1 
THE DEFINITION OF DISCRIMINATION .................................................... 15 
2 
2.1  Grounds of unlawful discrimination explicitly covered ................................ 15 
2.1.1  Definition  of  the  grounds  of  unlawful  discrimination  within  the 
directives ................................................................................. 15 
2.1.2  Multiple discrimination ............................................................... 19 
Assumed and associated discrimination ....................................... 20 
2.1.3 
2.2  Direct discrimination (Article 2(2)(a)) ...................................................... 21 
Indirect discrimination (Article 2(2)(b)) ................................................... 22 
2.3 
Statistical evidence ................................................................... 23 
2.3.1 
2.4  Harassment (Article 2(3)) ...................................................................... 25 
2.5 
Instructions to discriminate (Article 2(4)) ................................................ 26 
2.6  Reasonable  accommodation  duties  (Article  2(2)(b)(ii)  and  Article  5  Directive 
2000/78) ............................................................................................. 26 
PERSONAL AND MATERIAL SCOPE ............................................................ 30 
3.1  Personal scope ..................................................................................... 30 
EU  and  non-EU  nationals  (Recital  13  and  Article  3(2),  Directive 
2000/43 and Recital 12 and Article 3(2), Directive 2000/78) .......... 30 
3.1.2  Natural and legal persons (Recital 16, Directive 2000/43) .............. 30 
Private and public sector including public bodies (Article 3(1)) ........ 30 
3.1.3 
3.2  Material scope ...................................................................................... 31 
3.2.1  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)) ........................................ 31 
Employment  and  working  conditions,  including  pay  and  dismissals 
(Article 3(1)(c)) ........................................................................ 32 
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)) ................................... 32 
3.2.4  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)) ........................................................................ 32 
Social  protection,  including  social  security  and  healthcare  (Article 
3(1)(e) Directive 2000/43) ......................................................... 32 
Social advantages (Article 3(1)(f) Directive 2000/43) .................... 33 
Education (Article 3(1)(g) Directive 2000/43) ............................... 34 
Access to and supply of goods  and services that are available to the 
public (Article 3(1)(h) Directive 2000/43) .................................... 37 
3.2.9  Housing (Article 3(1)(h) Directive 2000/43) ................................. 38 
EXCEPTIONS ............................................................................................. 41 
4.1  Genuine and determining occupational requirements (Article 4) .................. 41 
4.2  Employers  with  an  ethos  based  on  religion  or  belief  (Article  4(2)  Directive 
2000/78) ............................................................................................. 41 
4.3  Armed forces and other specific occupations (Article 3(4) and Recitals 18 and 
19 Directive 2000/78) ........................................................................... 45 
4.4  Nationality discrimination (Article 3(2)) ................................................... 45 
4.5  Health and safety (Article 7(2) Directive 2000/78) .................................... 46 
4.6  Exceptions related to discrimination on the ground of age (Article 6 Directive 
2000/78) ............................................................................................. 47 
4.6.1  Direct discrimination ................................................................. 47 
4.6.2 
Special conditions for younger or older workers ............................ 49 
4.6.3  Minimum and maximum age requirements ................................... 49 

3.2.6 
3.2.7 
3.2.8 

3.2.5 

3.2.3 

4 

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Country report - Non-discrimination – United Kingdom – 2022 

7 

5 

6 

4.6.4  Retirement ............................................................................... 50 
4.6.5  Redundancy ............................................................................. 51 
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) ......... 52 
4.8  Any other exceptions ............................................................................. 52 
POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)
 ................................................................................................................. 53 
REMEDIES AND ENFORCEMENT ................................................................. 55 
6.1 
Judicial and/or administrative procedures (Article 7 Directive 2000/43, Article 
9 Directive 2000/78) ............................................................................. 55 
6.2  Legal  standing  and  associations  (Article  7(2)  Directive  2000/43,  Article  9(2) 
Directive 2000/78) ................................................................................ 58 
6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78) .. 59 
6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) ...... 60 
6.5  Sanctions  and  remedies  (Article  15  Directive  2000/43,  Article  17  Directive 
2000/78) ............................................................................................. 60 
BODIES FOR THE PROMOTION OF EQUAL TREATMENT (Article 13 Directive 
2000/43) .................................................................................................. 64 
IMPLEMENTATION ISSUES........................................................................ 69 
8.1  Dissemination of information, dialogue with NGOs and between social partners
 .......................................................................................................... 69 
8.2  Measures to ensure compliance with the principle of equal treatment (Article 14 
Directive 2000/43, Article 16 Directive 2000/78) ...................................... 70 
9 
COORDINATION AT NATIONAL LEVEL ....................................................... 72 
10  CURRENT BEST PRACTICES ....................................................................... 73 
11  SENSITIVE OR CONTROVERSIAL ISSUES .................................................. 74 
11.1  Potential breaches of the directives at the national level ............................ 74 
11.2  Other issues of concern ......................................................................... 74 
12  LATEST DEVELOPMENTS IN 2020 .............................................................. 76 
12.1  Legislative amendments ........................................................................ 76 
12.2  Case law .............................................................................................. 76 
ANNEX 1: MAIN TRANSPOSITION AND ANTI-DISCRIMINATION LEGISLATION  79 
ANNEX 2: INTERNATIONAL INSTRUMENTS ....................................................... 82 

8 

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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 
formally left the EU on 31 January 2020, with EU law continuing to apply in the UK until 
the end of the transition period on 31 December 2020. 

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 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.  During  2021,  a  Law  Commission 
report on hate crime recommended levelling up protection for hate crime based on sexual 
orientation,  disability  and transgender  identity,  and  extending  the  offence  of stirring up 
hatred to cover the grounds of sex or gender; the Scottish Parliament introduced the Hate 
Crime  and  Public  Order  (Scotland)  Act  2021  to  consolidate,  modernise  and  extend  its 
existing hate crime protection; and the Department of Justice Northern Ireland Hate Crime 
Review proposed amendments to strengthen its protection of race and religion and other 
protected characteristics with respect to hate crime.  

In 2021, the  Commission on  Race  and  Ethnic  Disparities,  set up  by the  Government in 
response to the Black Lives Matter protests in the summer of 2020, published its report 
concluding that most of the racial disparities examined did not have their origins in racism. 
Many NGOs protested that the report downplayed the role of institutional racism, and the 
findings and the report’s analysis were rejected and condemned by the UN Working Group 
of Experts on People of African Descent. 

Some prejudice 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, 
and from 2020 in Northern Ireland. 

Persons  with  disabilities  continue  to  experience  disadvantage,  earning  less  per  hour  on 
average than persons without disabilities. Those persons with disabilities who cannot work 
are dependent on an increasingly restricted welfare regime, with persons with disabilities 
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. Although much less 
so than during the period of ‘the Troubles’, some unrest was seen in 2021 as a result of 
the impact of post-Brexit trading rules on Northern Ireland. Sectarian divisions also feature 
in parts of Scotland. 

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Country report - Non-discrimination – United Kingdom – 2022 

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.  

During 2021, the significant health inequalities exposed in relation to COVID-19 continued, 
although steps were taken to address the higher risks of risk of dying from COVID-19 in 
Bangladeshi  and  Pakistani  ethnic  groups,  including  guidance  on  preventing  household 
transmission, given the higher percentage of people from the Bangladeshi and Pakistani 
ethnic  groups  living  in  multi-generational  homes,  and  measures  to  protect  taxi  drivers, 
over half of whom are from an ethnic minority background. Vaccine hesitancy was highest 
among Black people, followed by Bangladeshi/Pakistani people, and steps were taken to 
address this. 

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. In the UK there are, in addition, some criminal offences relating to 
racial and religious hatred, and tougher sentences can be imposed on crimes motivated by 
hatred based on sexual orientation, disability or being transgender.  

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,  marriage  or  civil  partnership,  pregnancy,  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 

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

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Country report - Non-discrimination – United Kingdom – 2022 

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)).  

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  person’s  disability,  which  cannot  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) 

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Country report - Non-discrimination – United Kingdom – 2022 

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. 

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. There is some uncertainty as to whether 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. Uber BV 
v  Aslam  [2021]  UKSC  5  confirmed  that  those  using  platform  sharing  devices  (the  ‘gig’ 
economy) are ‘workers’ and thus also protected under the Equality Act 2010.  

Discrimination in the provision of goods and services, housing, education, social protection 
including social security and healthcare, social advantages3 and the performance of public 
functions is also now prohibited across all the equality grounds except age in both GB and 
Northern Ireland. 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 

2   See Section 2.1.3 below. 
3   UK law does not contain a clear definition of social advantage, but judicial interpretation would be used to 

ensure protection as required.  

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Country report - Non-discrimination – United Kingdom – 2022 

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. 

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 persons with 
disabilities 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 

● 

● 
● 

● 

● 

● 

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● 

● 

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.  
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.  COVID-19  has  also  had  an 
impact on access to justice. 
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 conclusions of the Government’s Commission on Race and Ethnic Disparities in 
its report were condemned by NGOs as well as UN experts.  
The  ‘Windrush  generation’  (Commonwealth  citizens  who  settled  in  the  UK  before 
1 January 1973), who often lack documentation to confirm their immigration status, 
continue  to  have  difficulty  accessing  benefits  and  services,  which  can  amount  to 
indirect race discrimination.  
Significant inequalities are faced by Gypsy, Roma and Traveller communities. 
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.  

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Country report - Non-discrimination – United Kingdom – 2022 

● 

COVID-19 has exposed significant health inequalities, in particular in relation to black 
and ethnic minority groups and persons with disabilities. 

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Country report - Non-discrimination – United Kingdom – 2022 

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. 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. 

The UK formally left the EU on 31 January 2020. From 2021 onwards, GB courts should 
normally continue to interpret the Equality Act 2010 in line with EU court decisions made 
before the end of 2020. The Supreme Court and the Court of Appeal may depart in some 
circumstances  from  the  case  law  of  the  CJEU,  while  being  bound  by  the  provisions  of 
Directives 2000/78/EC and 2000/43/EC. From 2021 onwards, when interpreting UK laws 
that  are based on EU Directives (such as the Equality Act provisions  that implement EU 
Equality Directives), GB courts are not bound by post-2020 EU court decisions  but may 
have regard to them. Under the UK-EU Withdrawal Treaty, Northern Ireland continues to 
be bound by the EU Equal Treatment Directives and to interpret them in conformity with 
post-2020 ECJ decisions.  

The UK-EU trade agreement contains a non-regression clause, which means that parties 
cannot reduce their protection against discrimination below 2020 levels if the difference in 
protection affects trade or investment. This is likely to mean that there is no large-scale 
reduction in the scope of the Equality Act 2010, although smaller changes that do not have 
an impact on trade and investment will be possible. 

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. 

11 

 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – United Kingdom – 2022 

List of main legislation transposing and implementing the directives 

GB 
● 

The Equality Act 20104 (EqA): 
o 
o 

adopted 08.04.2010;  
grounds  covered:  sex,  gender  reassignment,  marriage,  a  civil  partnership, 
pregnancy,  race  (including  colour,  nationality,  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 (except for age); provision of goods, facilities 
and services; membership organisations; functions of public authorities. 

o 

NI 
●  The Disability Discrimination Act 19955 (DDA): 

o 
o 
o 

adopted 08.11.1995;  
grounds covered: disability; 
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 19976 (RRO): 

o 
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. 

●  The Fair Employment and Treatment Order 19987 (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) 20038 (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) 20069 (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) 200610 (Age Regs): 

o 
o 

adopted 14.06.2006;  
grounds covered: age; 

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

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

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

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

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

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

8   Employment Equality (Sexual Orientation) Regulations (NI) 2003 (SOR 2003), 01.12.2003, available at: 

https://www.legislation.gov.uk/nisr/2003/497/contents/made. 

9   Employment Equality (Sexual Orientation) Regulations (NI) 2006 (SOR 2006), 08.11.2006, available at: 

https://www.legislation.gov.uk/nisr/2006/439/contents/made. 

10   Employment Equality (Age) Regulations (NI) 2006 (Age Regs), 14.06.2006, available at: 

https://www.legislation.gov.uk/nisr/2006/261/contents/made.  

12 

 
 
 
 
Country report - Non-discrimination – United Kingdom – 2022 

o 

material scope: employment (broadly defined to include occupation, vocational 
training etc.). 

13 

 
Country report - Non-discrimination – United Kingdom – 2022 

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 1998,11  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). 

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

14 

 
 
 
 
 
 
Country report - Non-discrimination – United Kingdom – 2022 

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  
gender reassignment 
marriage and civil partnership status 
pregnancy 
race (incl. colour, nationality, citizenship, ethnic origins and national origins) 
disability 
sexual orientation 
religion or belief 
age 

NI (in addition to the grounds above) 

− 
− 

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 (Article 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 Act12 (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.  

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 
discrimination  against  the  Scottish  or  English.  However,  immigration  status  does  not 
amount to nationality or race and is not protected under the Equality Act 2010.13 

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 

12   Race Relations Act 1965, 08.11.1995, available at: 

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

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

15 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – United Kingdom – 2022 

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,14 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….’15  

The  definition  of  ethnic  origins  in  UK  legislation  therefore  complies  with  definitions  of 
ethnicity provided by the CJEU in CHEZ C-83/14. 

In Chandhok v Tirkey16 the Employment Appeal Tribunal accepted that discrimination on 
the basis of caste could fall within discrimination on the basis of ethnic origin.17 

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 
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.  

14   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. 

15   Per Lord Fraser in Mandla v Dowell Lee. 
16   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.  

17   Section 9 EqA, as amended, had 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 Chandhok v 
Tirkey case the Government repealed the amendment to the Equality Act 2010. 

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Country report - Non-discrimination – United Kingdom – 2022 

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)18  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.19 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;20  and a belief 
that ‘public service broadcasting has the higher purpose of promoting cultural interchange 
and  social cohesion’.21  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.22  

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.23  

In  Forstater v CGD Europe, the Employment Appeal Tribunal  (EAT)  accepted a claim for 
protection for  gender-critical  beliefs,  which  include  the  belief that  sex is  immutable  and 
should  not  be  conflated  with  gender  identity,  and  that  trans  women  are  not  women. 
Forstater  had  alleged  that  she  was  discriminated  against  when  her  contract  was  not 
renewed following complaints from colleagues at work that her views, expressed on social 
media, were offensive and transphobic. At the preliminary hearing on whether her belief 
was  protected,  the Employment Tribunal  (ET)  had  decided  her  belief  was  not  protected 
under the Equality Act 2010, drawing particular attention to the fact that the beliefs were 
absolutist, and that it was a core component of the belief that she would refer to people 
by the sex she considered appropriate even if to do so were to violate individual dignity. 
The Employment Appeal Tribunal held that the belief was a protected belief. A belief should 
be excluded from protection only if it was the kind of belief akin to Nazism or totalitarianism 
and thereby liable to be excluded from the protection of rights under Articles 9 and 10 of 
the European Convention of Human Rights (ECHR) by virtue of Article 17 thereof. The EAT 
noted that  the  claimant’s  gender-critical  beliefs  were  widely  shared  and  did  not seek  to 
destroy the rights of trans persons. While the claimant’s belief was offensive to some, it 
fell within the protection under Article 9(1) of the ECHR and therefore within the protection 
of  the  Equality  Act  2010.  The  case  was  remitted  to  a  freshly  constituted  tribunal  to 
determine whether the treatment about which the claimant complained was because of or 

18   To which cases go on appeal from employment tribunals in Great Britain. 
19   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. 

20   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). 

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

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

22   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. 

23   Employment Tribunal 24.08.2013, Case No. 3200396/2011, [2013] EqLR 858. 

17 

 
 
 
 
 
Country report - Non-discrimination – United Kingdom – 2022 

related  to  her  belief.  It  should  be  noted  that  the  EAT  took  a  different  approach  to  the 
Employment Tribunal on one key issue, which led to the change of approach. The ET view 
had been that the claimant’s beliefs would necessarily and always lead her to misgender 
trans people. However, the EAT referred to evidence which showed that the claimant would 
generally seek to be polite and respect their choice of pronoun, although she would not 
feel  bound  to  do  so  in  all  circumstances.  On  this  basis,  the  EAT  was  clear  that  it  was 
determining  only  that  the  belief  regarding  gender  identity  was  capable  of  meeting  the 
statutory definition of belief. It was not determining that the claimant’s manifestation of 
that belief through her activities on social media were necessarily protected. Indeed, the 
EAT was very clear that the decision does not mean that those with gender-critical beliefs 
can  misgender  trans  persons  with  impunity;  that  trans  people  are  protected  against 
discrimination and harassment under the Equality Act; and that employers can continue to 
provide a safe environment for trans people.  

Although the definition of religion or belief is thus not entirely clear, the EHRC’s 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 
continue to be clarified through case law. 

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’.24 ‘Long-
term’ means lasting or likely to last at least 12 months, or for the rest of the person’s life.25 
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.26 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.27  

In 2021, in Elliott v Dorset County Council,28 the Employment Appeal Tribunal confirmed 
that the term ‘substantial’ means ‘more than minor or trivial’. If this statutory definition is 
met, on a consideration of the ordinary meaning of the words, that takes precedence over 
the  Guidance  and  Code.  The  EAT  confirmed  that  employment  tribunals  should  consider 
whether the claimant is affected to a more than minor or trivial extent in carrying out day-
to-day  activities  (which  may  include  work  activities)  as  a  result  of  the  impairment  in 
comparison with what the situation would be if the claimant did not have the impairment. 

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 

24   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. 

25   DDA Sch 1, para 2. 
26   DDA Sch 1, para 4(1). 
27   Equality Act 2010 Schedule 1. 
28   Employment Appeal Tribunal, Elliott v Dorset County Council, 09.04.2021, UKEAT/0197/20/0904, available 

at: http://www.bailii.org/uk/cases/UKEAT/2021/0197_20_0904.html.  

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Country report - Non-discrimination – United Kingdom – 2022 

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.29 In Banaszczyk v Booker30 
the EAT interpreted day-to-day activity to include day-to-day activities of professional life, 
in accordance with the approach in Ring.31  

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’. 
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. 

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 
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.32 

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.33 

29   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. 

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

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

31   Court of Justice of the EU, Joined Cases C-335/11 and C-337/11 Skouboe Werge and Ring 11.04.2013. 
32   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. 

33   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. 

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Country report - Non-discrimination – United Kingdom – 2022 

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).34  
In Chief Constable of Norfolk v Coffey35 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 R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home 
Department36  a  legal  requirement on  landlords to  check the immigration status  of 
tenants and potential tenants was found to be potentially discriminatory on the basis 
of tenants’ actual or perceived nationality, because evidence showed that the risk of 
a  penalty  caused  landlords  to  discriminate  against  those  who  did  not  have 
traditionally British-sounding names or did not appear ethnically British. The Court of 
Appeal held that this was potentially discriminatory on grounds of race but that any 
such effect was justified as the legal requirement was capable to being implemented 
in a proportionate way.37  

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. 

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. 

34   https://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/2/2/1. 
35   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. 

36   Court of Appeal [2020] EWCA Civ 542 available at: 

https://www.bailii.org/ew/cases/EWCA/Civ/2020/542.html. 

37   The decision was a judicial review, relying on the non-discrimination provisions of the ECHR, as well as s149 

Equality Act 2010.  

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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 Defence38 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)39 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  
● 

NI  
● 

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);40 
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);41 
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’. 

o 
o 

o 
o 

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);42 

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

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

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

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

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

requirements of EU law. 

42   The equivalents of s23 EqA are RRO 3(1c); FETO art. 3(3); and reg.3(2) SOR.  

21 

 
 
 
 
 
 
 
 
 
 
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● 

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.43  

The 2018 Supreme Court decision in Lee v Ashers & Ors44 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.45  

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. 

GB  
● 

NI 
● 

● 

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. 

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);  

43   Section 13(2) Equality Act 2010. 
44   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.  

45   After the cut-off date for this report, on 6 January 2022 the European Court of Human Rights declared 

application in the case of Lee v. the United Kingdom (application no. 18860/19) inadmissible, because the 
applicant had not invoked his Convention rights at any point in the domestic proceedings.  

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● 

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 section 35 of 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.46 

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, 
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.  

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

para 8. 

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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.47  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)48  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. 

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

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

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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.49  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,50 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.51  

In  the  UK,  harassment  does  not  explicitly  constitute  a  form  of  discrimination,  but  it  is 
regulated  as  a  separate  form  of  prohibited  conduct  in  respect  of  which  the  same  rules 
concerning burden of proof apply and the same remedies are available.52 

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.53  

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 
Act 2010, it was confirmed that this is not the case in Unite the Union v Nailard.54 Here the 
Court  of  Appeal  confirmed  that  the  Equality  Act  does  not  cover  liability  for  third  party 

49   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. 

50   Art 4A, s3B, Art 3A, reg 5, reg 3 and reg 6 of the RRO, DDA, FETO, SOR 2003, SOR 2006 and Age Regs 

respectively. 

51   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. 

52   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.  

53   Ss109 & 110 EqA, Art 3 RRO, s3B DDA, Art 3A FETO, reg 6 Age Regs and regs 25 & 25 SOR 2003. 
54   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. 

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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.55  

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).56  

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.57  

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 persons with 
disabilities in the area of employment 

In the UK, the duty on employers to provide reasonable accommodation for persons with 
disabilities is included in the law and is defined, although it is termed the duty to make 
reasonable  adjustments.  The 
reasonable 
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.58 

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. 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 EHRC guidance 
provides  examples  such  as  allowing  a  person with  a  disability  to  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.  

55   Art 30 RRO, s 16C DDA, Art 35 FETO, reg 5 Age Regs and reg 21 SOR 2006. 
56   Court of Appeal, Weathersfield Limited t/a Van & Truck Rentals v Sargent [1998] EWCA Civ 1938. 
57   Ss109 & 110 EqA, Art 3 RRO, s3B DDA, Art 3A FETO, reg 6 Age Regs and regs 25 & 25 SOR 2003. 
58   S20 EqA, s4A DDA. 

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The Employment Statutory Code states that the availability of financial assistance from the 
state (such as an Access to Work grant) can be taken into account in assessing whether 
an adjustment is reasonable/whether there is a disproportionate burden on the employer.59  

b) 

Case law 

It is likely that a failure to comply with general guidelines (such as those provided by the 
Equality  and  Human  Rights  Commission60  and  the  Advisory,  Conciliation  and Arbitration 
Service),61  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 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 steps 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  Carreras62  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 CC63 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 person with a disability. In 2016 in G4S Cash Solutions (UK) Ltd 
v  Powell64  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 reduced. 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,65 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. 

59   See: https://www.equalityhumanrights.com/sites/default/files/employercode.pdf, paras 6.28 and 6.36.  
60   See: https://www.equalityhumanrights.com/en/multipage-guide/reasonable-adjustments-practice. 
61   See: https://www.acas.org.uk/reasonable-adjustments. 
62   Court of Appeal, [2018] EWCA Civ 323. See Section 12.2 below. 
63   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. 

64   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. 

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

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

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In 2020, in Hill v Lloyds Bank Plc66 the Employment Appeal Tribunal held that it would have 
been a reasonable adjustment to ensure that an employee with a disability linked to mental 
health would not be required to work with two colleagues who she claimed had bullied and 
harassed her and that, if this were not possible, a severance package should be offered. 
This  was  despite  the  fact  that  the  employer  did  not  have  a  practice  of  giving  such 
undertakings. 

These  cases  confirm  that  tribunals  take  a  fairly  expansive  view  on  what  the  duty  of 
reasonable accommodation can entail, and that they allow for workers with disabilities to 
be treated more favourably than other workers. In the view of the author the interpretation 
of the duty is in line with EU law.  

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 
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 persons with disabilities 

In  the  UK,  failure  to  meet  the  duty  of  reasonable  accommodation  in  employment  for 
persons with disabilities is recognised as a 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.67 

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 

66   Employment Appeal Tribunal [2020] UKEAT/0173/19/LA & UKEAT/0233/19/LA, available at: 

www.bailii.org/uk/cases/UKEAT/2020/0173_19_0603.html. 

67   For example, provision of goods and services, DDA ss20. 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. 

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applies to discrimination under the Equality Act, including discrimination by failure to make 
a reasonable adjustment.68  

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

persons with disabilities 

In the  UK,  there  is  a legal  duty to  provide  reasonable  accommodation for  persons  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  persons  with 
disabilities generally, it is, in relation to the duty outside of employment, an anticipatory 
duty.  This  means  that  public  and  private  organisations  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 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. The issue was discussed in the case 
of Bull & Anor v Hall & Anor. 69 The case involved the refusal to honour the booking of a 
double room by a same-sex couple on the basis that such rooms were reserved for married 
couples  only.  At  the  time  of  the  case,  only  heterosexual  couples  could  marry.  At  the 
Supreme  Court,  a  number  of  issues  were  discussed  including  the  scope  of  direct  and 
indirect  discrimination  on  grounds  of  sexual  orientation,  and  the  Court  concluded  that 
denying civil partners a service because they were unmarried (and were unable to marry 
as  same-sex  marriages  were  not  legally  recognised  at  the  time)  amounted  to  direct 
discrimination. In further comments relating to the role of the right to freedom of religion 
in  the  consideration  of  the  case,  the  Supreme  Court  suggested  that  the  scope  for 
reasonable accommodation could be part of the proportionality assessment in an  indirect 
discrimination claim,70 at least in some cases. It is possible that the same approach might 
be taken in relation to a failure to make reasonable accommodation for other protected 
characteristics.  

Although  there  is  no  legislation  providing  a  duty  to  make  accommodation  for  other 
characteristics, guidance for employers from both the Advisory, Conciliation and Arbitration 
Service (ACAS) (see Section 6.1) and the Equality and Human Rights Commission (EHRC) 
(see Section 7) suggests that it is good practice to accommodate requests for time off for 
religious observance where possible.71 

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

s17(1C) DDA. 

69   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.  

70   Equality Act s.19; Art 3 RRO; Art 3 FETO; Reg 3 Age Regs; Reg 3 SOR 2003. 
71   These guidelines apply to all religions and beliefs.  

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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.72 

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.73 In relation to legal persons 
in GB, the Equality Act it has been confirmed that companies are protected as legal persons 
for all grounds apart from disability.74 For NI, judicial interpretation would be required for 
legal persons for all categories apart from disability.75 

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.76  

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 

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

with irregular or undocumented migration status.  

73   GB: Equality Act 2010 throughout. NI Disability Discrimination Act 1995; Race Relations (NI) Order 1997; 
Fair Employment and Treatment Order 1998; Employment Equality (Sexual Orientation) Regulations (NI) 
2003; Employment Equality (Sexual Orientation) Regulations (NI) 2003 throughout.  

74   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. For disability the definition of 
disability refers to the person with a disability and so can only apply to natural persons.  

75   For disability, the definition of disability refers to the person with a disability and so can only apply to 

natural persons.  

76   GB: Equality Act 2010 throughout. NI Disability Discrimination Act 1995; Race Relations (NI) Order 1997; 
Fair Employment and Treatment Order 1998; Employment Equality (Sexual Orientation) Regulations (NI) 
2003; Employment Equality (Sexual Orientation) Regulations (NI) 2003 throughout. 

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distinction between the two, so the legislation applies to both. National law complies with 
the directives in this regard. 77 

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.78 

3.2  Material scope 

3.2.1  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 legislation79 prohibits discrimination in relation to conditions for access 
to 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 the private and public sectors as described in the directives, 
with the following exceptions: 

a) 

Conditions  for  access  to  self-employment  are  currently  not  settled,  as  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  the  arbitrators 
concerned  were  not  ‘employed’  for  the  purposes  of  the  anti-discrimination 
provisions80  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-employment  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  2010.81  This 
outcome  was  confirmed  in  the  2021  case  of  Uber  BV  v  Aslam.82  Uber  provides  a 
private hire vehicle booking services in the UK whereby journeys are booked through 
a  smartphone  app,  which  connects  passengers  to  drivers.  The  respondents  were 
drivers  who  were users  of  that  app,  and their  case  was  brought  as  a test case  to 

77   GB: Equality Act 2010 throughout. NI Disability Discrimination Act 1995; Race Relations (NI) Order 1997; 
Fair Employment and Treatment Order 1998; Employment Equality (Sexual Orientation) Regulations (NI) 
2003; Employment Equality (Sexual Orientation) Regulations (NI) 2003 throughout. 

78   GB: Equality Act 2010 throughout. NI Disability Discrimination Act 1995; Race Relations (NI) Order 1997; 
Fair Employment and Treatment Order 1998; Employment Equality (Sexual Orientation) Regulations (NI) 
2003; Employment Equality (Sexual Orientation) Regulations (NI) 2003 throughout. 

79   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. 

80   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. 

81   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.  

82   Supreme Court [2021] UKSC 5, 19.2. 2021, available at: https://www.supremecourt.uk/cases/docs/uksc-

2019-0029-judgment.pdf. 

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establish their employment status. The Supreme Court found unanimously that the 
drivers were ‘workers’ for the purposes of the protective legislation. 

c) 

b)  Discrimination in access, selection criteria, recruitment conditions and promotion in 
relation  to  voluntary  work  falls  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.83 
Anti-discrimination legislation prohibits discrimination in access to employment, self-
employment, selection criteria, recruitment conditions and promotion 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 race84 and so any discrimination in relation to employment 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. 

3.2.2  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.85 

3.2.3  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.86  

3.2.4  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.87 

3.2.5  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.88  

83   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. 

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

85   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. 

86   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. 

87   EqA s57; DDA ss13-14; RRO Art 13; FETO Art 23; SOR 2003 regs 17; Age Regs reg 19. 
88   EqA s29; DDA s19, 21B; RRO Arts 20, 20A; FETO Art 28; SOR 2006 regs 5,12. 

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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 
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 18.89 

In Northern Ireland, the RRO90 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.91 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.92  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.93  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.94  

3.2.6  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.95  

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 
18.96 

89   EqA S28 (1)(a). 
90   RRO Art 20A.  
91   DDA Ss19, 21B. 
92   FETO Art 28. 
93   SOR 2006 Regs 5, 12. 
94   EqA s29; DDA ss29, 59; RRO Arts 20, 20A & 40; FETO Arts 28, 78; SOR 2006 regs 5,12 & 49. 
95   EqA s29; DDA ss19, 21B; RRO 20, 20A; FETO Art 28; SOR 2006 regs 5,12. 
96   EqA S28 (1)(a). 

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In Northern Ireland, the RRO97 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 
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. 

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

In the UK, national legislation prohibits  discrimination in education as formulated in the 
Racial Equality Directive.98  

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,99 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.100  

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.101 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 

97   Article 20A RRO.  
98   EqA ss84-99; The Special Educational Needs and Disability (Northern Ireland) Order 2005, Art 14-16;; RRO 

Arts 18-20; FETO Art 27; SOR 2006 regs 9-11. 

99   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. 
100  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. 

101  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.  

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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 
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. 

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.102 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 
persons 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.103  The number of  successful  appeals is  over  85 %.104  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.105 Cuts to 
local authority budgets have resulted in decreases in spending on support for children with 
disabilities in schools, although a legal case challenging government policy found that the 
funding  was  not  discriminatory.106  Cuts  to  Disabled  Students’  Allowances  for  higher 
education have also had an adverse impact on students with disabilities.107 

102  EqA ss84-99, The Special Educational Needs and Disability (Northern Ireland) Order 2005. 
103  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. 

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

disabled-children-miserable/. 

105  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.  

106  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. 

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

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

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COVID-19  and the  resulting lockdowns  have  had  a  significant impact on  education.  The 
negative impact was greater for some groups, in particular students with disabilities.108  

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) 

Trends and patterns regarding Roma pupils 

In the UK, there are specific societal trends and/or patterns in education regarding Roma 
and Traveller 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. ‘Roma’ is used here to include Gypsies/Travellers/Irish Travellers as 
well as Roma from Eastern and Central Europe. 

The  Government’s  2021  Race  Disparity  Audit  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 in relation to key indicators such as A-level attainment.109 
In 2020 data confirmed that Traveller of Irish Heritage and Gypsy/Roma pupils made the 
least educational progress between 11 and 16 years:110 9 out of 10 leave school without 
meeting the national standard level of educational attainment (five good GCSEs), and they 
are ten times less likely to progress to higher education.111 Levels of absence from school 
are highest for Gypsy, Roma and Traveller pupils.112 These children also 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.113 
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.  In  2020  government  funding  was  provided  for  training 
programmes to help Gypsy, Roma and Traveller children catch up on education lost during 
the COVID-19 pandemic.114  

108  Ofsted (2020), COVID-19 series: briefing on special educational needs and disabilities provision, November 
2020, available at: https://www.gov.uk/government/publications/covid-19-series-briefing-on-local-areas-
send-provision-november-2020.  

109  See: https://www.ethnicity-facts-figures.service.gov.uk/education-skills-and-training. The same data is not 

collected for every educational stage and so clear trends are difficult to identify.  

110  Office of National Statistics (2020), Child poverty and education outcomes by ethnicity, available at: 

https://www.ons.gov.uk/economy/nationalaccounts/uksectoraccounts/compendium/economicreview/februar
y2020/childpovertyandeducationoutcomesbyethnicity.  

111  Centre for Education and Youth (2017), The underrepresentation of Gypsy, Roma and Traveller pupils in 

higher education, available at: https://cfey.org/wp-content/uploads/2017/07/KINGWIDE_28494_FINAL.pdf. 

112  Government data on Absence from School, available at: https://www.ethnicity-facts-

figures.service.gov.uk/education-skills-and-training/absence-and-exclusions/absence-from-
school/latest#overall-absence-by-ethnicity. 

113  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. 

114  https://www.gov.uk/government/news/gypsy-roma-and-traveller-children-and-young-people-to-get-extra-

education-support. 

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3.2.8  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.115  

Discrimination on grounds of sexual orientation in the provision of services was considered 
in  R  v  Cornerstone  (Northeast)  Adoption  and  Fostering  Service  Ltd)  v  OFSTED.  116 
Cornerstone, a charity founded on a perception of evangelical Christian principles, operated 
as  an  independent  fostering  agency.  It  required  staff,  volunteers  and  carers  to  be 
evangelical Christians and to refrain from ‘homosexual behaviour’ as described in its Code 
of  Practice.  Ofsted,  the  statutory  body  charged  with  regulating  fostering  agencies, 
concluded after an inspection that Cornerstone’s recruitment policy violated provisions of 
the Equality Act 2010 (EA 2010) prohibiting discrimination on grounds of sexual orientation 
in the provision of goods and services, and required Cornerstone to change its policy.  

Ofsted  argued  that  Cornerstone  applied  a  provision,  criterion  or  practice  (PCP)  that 
required carers to be evangelical Christians who comply with the Code of Practice and in 
particular to refrain from ‘homosexual behaviour’. The PCP applies to all potential carers, 
but places  prospective lesbian and gay carers at a particular  disadvantage compared to 
prospective heterosexual carers because gay or lesbian carers will be less likely to be able 
to comply with the Code of Practice. Cornerstone then challenged Ofsted’s conclusions on 
the  basis  that  it  did  not  offer  a  service,  and  that  any  discrimination  was  because  of 
homosexual  behaviour,  rather than  because of sexual  orientation, so that there  was  no 
discrimination  on  grounds  of  sexual  orientation.  Cornerstone  also  argued  that  Ofsted’s 
report infringed its rights to religious freedom and freedom of expression.  

The High Court held that Cornerstone was offering a service to potential foster parents and 
fulfilling a public function as it provided carers for children who were under the care of the 
state.  It  also  held  that  the  recruitment  policy  did  discriminate  on  grounds  of  sexual 
orientation, both directly and indirectly. Cornerstone’s policy, which required carers not to 
engage in homosexual behaviour, was directly discriminatory because of the characteristic 
of sexual orientation. Alternatively, any indirect discrimination caused by the fact that the 
policy  would  put  same-sex  couples  at  a  particular  disadvantage  compared  with  other 
couples could not be justified. It held that there was no breach of Cornerstone’s rights to 
freedom  of  religion  (the  non-recruitment  of  gay  and  lesbian  foster  carers  was  not  a 
manifestation of religious belief and, in any event, any interference was a proportionate 
means of achieving a legitimate aim) and freedom of expression (any interference was a 
proportionate means of achieving a legitimate aim). The case was appealed to the Court 
of Appeal, which upheld the High Court decision.117  

115  Equality Act 2010, S 29 (7). 
116  R (Cornerstone (North East) Adoption and Fostering Service Ltd)) v The Office for Standards In Education, 

Children’s Services and Skills [2021] EWCA Civ 1390; 24.9.2021 Available at: 
https://www.bailii.org/ew/cases/EWCA/Civ/2021/1390.html. 

117  [2021] EWCA Civ 1390 https://www.bailii.org/ew/cases/EWCA/Civ/2021/1390.html.  

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a)  Distinction between goods and services available publicly or privately 

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.118  

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.  

3.2.9  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.119  The protection also covers disability, religion or  belief 
and sexual orientation, but not age.  

In  R  (on  the  application  of  Z  and  another)  v  London  Borough  of  Hackney  Council  and 
another120  the  Supreme  Court  considered  a  case  of  potential  discrimination  in  housing 
provision on grounds of religion and belief and race. It involved a charity set up to provide 
social housing to members of the Orthodox Jewish community. Z was a single mother who 
required social housing but was not from the Orthodox Jewish community and so was not 
offered housing through the  charity. The  Supreme  Court had to  determine  whether  the 
discrimination  involved  in  refusing  housing  on  grounds  of  religion  amounted  to  lawful 
positive  action,  on  the  basis  that  it  was  a  proportionate  means  to  compensate  a 
disadvantaged community.  The Divisional Court121  accepted that there was a correlation 
between poverty and deprivation in the Haredi community and their religion and found that 
the religion and belief discrimination was lawful as a proportionate means of compensating 
for that disadvantage. This finding was upheld by both the Court of Appeal and, in 2020, 
by the Supreme Court. The Supreme Court did not consider whether the case involved the 
positive  action  exception  under  Directive  2000/43/EC  Article  5  (because  the  case  was 
argued  on  the  basis  of  religious  discrimination  rather  than  race  discrimination)  but 
suggested that such an exception might well apply.  

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.  

118  Equality Act 2010, S 107. 
119  EqA ss32-35; RRO Arts 22-24; FETO Arts 29-31; DDA ss22-24M; SOR 2006 regs 6-7.  
120  [2020] UKSC 40 available at: https://www.bailii.org/uk/cases/UKSC/2020/40.html. 
121  [2019] EWHC 139 (Admin), https://www.bailii.org/ew/cases/EWHC/Admin/2019/139.pdf.  

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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.122 

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 1968.123 This 
was  removed  by  the  Criminal  Justice  and  Public  Order  Act  1994124  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. Between 2017 and 2019 there were a large number 
of injunctions  prohibiting  encampments,  with the injunctions  not  identifying  any  named 
defendants.125  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.  

In  2020,  in  The  Mayor  and  Burgesses  of  the  London  Borough  of  Bromley  v  Persons 
Unknown126  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. The Court of  Appeal  noted  in the  case that  a 
nomadic lifestyle is an integral part of Gypsy and Traveller tradition and culture, and that 
in the UK there is a longstanding and serious shortage of sites for Gypsies and Travellers.  

During 2021, the Police, Crime and Sentencing Bill was introduced in Parliament. Part 4 of 
the  Bill  will  create  a new  criminal offence  for  England  and Wales  and  an  accompanying 
power for the police to seize property (including vehicles) where individuals reside or intend 
to reside on land with a vehicle. The offence will be committed if a person who resides or 
intends to reside with a vehicle on land fails to leave the land or  remove their  property 
without  reasonable  excuse  when  asked  to  do  so  by  the  occupier  of  the  land,  their 
representative  or  a  constable  and  they  have  caused,  or  are  likely  to  cause,  significant 
damage, disruption, or distress (including anti-social behaviour). The Bill does not explicitly 
mention travellers, but its  provisions  are clearly aimed at them, as  it criminalises  those 

122  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. 

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

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

125  London Borough of Kingston Upon Thames v Persons Unknown [2019] EWHC 1903. 
126  [2020] EWCA Civ 12 available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/12.html. 

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who reside on land with vehicles. It applies to private, public and common land.  The Bill 
has not yet completed its passage through Parliament and so was not in force during 2021. 

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.127 

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.128 
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. 

127  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. 

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

living-environment. 

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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.129 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).130 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)’.  

129  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. 

130  Race Relations (NI) Order 1997 (RRO) Art 7A, 8(2) 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.  

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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.131 

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 1998132 (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) 1980.133  

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’.134  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.135  

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 School136 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 
not  accepted,  because  the  pregnancy  precipitated  and  permeated  the  decision  to 

131  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).  

132  School Standards and Framework Act 1998 (SSFA), 24.07.1998, available at: 

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

133  Education Act (Scotland) 1980, 01.08.1980, available at: www.legislation.gov.uk/ukpga/1980/44. 
134  S 60 SSFA 1998, as amended by s 37 of the Education and Inspections Act 2006. 
135  S 58 SSFA 1998.  
136  [1996] IRLR 372. 

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dismiss.137 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 
FETO138  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). 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.139 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 
create  (as  drafted)  a  blanket exception,  without  regard to the  conduct of  the individual 

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

reasoning would still apply.  

138  Fair Employment and Treatment Order 1998 (FETO) Art 70. 
139  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. 

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employee  or  prospective  employee,  for  any  employment  ‘for  the  purposes of organised 
religion’. However, judicial interpretation of the Regulations140 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 Nottingham141 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 doctrine142 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.143  

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).144 
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.145 The ECtHR 
confirmed that this decision did not breach Articles 9 and 14 ECHR.146  

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

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

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

followers. 

143  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. 

144  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. 

145  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. 

146  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. 

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

and 19 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).  

In the UK, the scope of the exception is limited to safeguarding the combat effectiveness 
of the armed forces (Schedule 9, paragraph 4 EqA).  

In the UK, the scope of the exception does not extend to other non-combating staff, such 
as civilians employed in administrative positions in the army.147 

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 Akwiwu148 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 2010.149 

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 

147  The Ministry of Defence employs civil servants in civilian roles.  
148  Supreme Court, Taiwo v Olaigbe; Onu v Akwiwu [2016] UKSC 31, available at: 
https://www.supremecourt.uk/cases/docs/uksc-2014-0105-judgment.pdf. 

149  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. 

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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.150 

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  person  with  a  disability  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 person with disability).  

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,151  and  a  requirement  that  all  railway  repair  workers  wear  protective  head 
gear.152 Chaplin v Royal Devon and Exeter NHS Foundation Trust153 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.154 

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.  

150  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. 

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

(21.04.2010) [2010] ET 1702886/2009.  

154  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. 

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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.155 

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

Directive 2000/78) 

4.6.1  Direct discrimination 

a) 

Exceptions to the prohibition of direct discrimination on grounds of age 

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.156  

b) 

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).157  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.158 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 

155  Highway Code Rule 83; Employment Act 1989 S11.  
156  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. 
157  Court of Appeal [2017] EWCA Civ 191, available at: 

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

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

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

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direct discrimination could be justified, relying on the interests of staff retention, workforce 
planning and congeniality accepted as potentially legitimate aims.159  

Lord Chancellor v McCloud; Home Secretary v Sargeant160 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.  

c) 

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.’  

159  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. 

160  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.  

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d) 

Fixing of ages for admission to 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 
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.161  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 younger or 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 2020 have increased 
to: under 18 EUR 5.29 (GBP 4.55) per hour; 18-20 EUR 7.51 (GBP 6.45) per hour; 21-24, 
EUR 9.54 (GBP 8.20), 25 and over EUR 10.12 (GBP 8.72) per hour. Apprentices under 19, 
or  19  and  over  but  in  their  first  year  of  apprenticeship,  are  entitled  only  to  EUR 4.84 
(GBP 4.15) 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.162 

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))163 
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 

161  Age Regs Sch 1. 
162  https://minimumwage.blog.gov.uk/2020/03/09/why-do-young-people-have-lower-minimum-wages/. 
163  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. 

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to the implementation of the legislative prohibition of age discrimination as such.164 Any 
difference in age limits for men and women would be unlawful sex discrimination. 

4.6.4  Retirement  

a) 

State pension age 

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 66. The age will increase to 67 for those born on or 
after April 1960, with a plan to increase to 68 between 2044 and 2046 for those born on 
or after April 1977. 

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’).165 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 partners was justified. The EAT did 
not  accept  that  the  employer  was  under  a  heavy  burden  to  justify  the  choice  of  the 

164  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. 

165  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. 

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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 67.166 

Determining  precisely  when  employer-imposed  retirement  can  be  justified  remains 
difficult. In 2021, the Employment Appeal Tribunal (EAT) heard the appeal of two university 
professors required to retire by their employer, the University of Oxford, one of a small 
number of employers to adopt an employer justified retirement age (EJRA). 167 The EJRA 
has three legitimate aims: inter-generational fairness; succession planning by maintaining 
predicable retirement dates; and equality and diversity. The EJRA is said to achieve these 
aims by ensuring vacancy creation is not delayed; and recruitment into senior academic 
roles might take place from a younger, more diverse cohort. These aims were accepted as 
legitimate by the EAT. The original Employment Tribunal decisions had decided that in one 
case the retirement was justified and in the other it was not, but the EAT held that neither 
tribunal had erred in law in assessing the whether the application of the EJRA was justified 
as a proportionate means to achieve the legitimate aims. Each had reached a conclusion 
which  was  based  on  evidence  before  them  and  after  proper  assessment  of  the 
proportionality of imposing the EJRA on the case before it. The EAT held that the nature of 
the  proportionality  assessment  was  that  different  tribunals  could  reach  different 
conclusions even when considering the same measure adopted by the same employer. For 
example,  the  impact  of  retirement  differed  in  the  two  cases.  Whereas  the  literature 
professor could continue with his research as an emeritus professor, the lab-based science 
professor  required  access  to  university  facilities  as  part  of  a  project  team  in  order  to 
continue to research. This meant that the evidence regarding detriment differed between 
the two cases.  

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.  

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.168  

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.  

166  Employment Appeal Tribunal [2014] IRLR 748, 13.05.2014. 
167  Pitcher v University of Oxford and University of Oxford v Ewart, EA-2019-000638-RN  

EA-2020-000128-RN 27.9.21 available at: https://www.bailii.org/uk/cases/UKEAT/2021/2019-000638.pdf. 
168  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. 

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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, 
freedoms  of  others  (Article  2(5), 

protection  of  the  rights  and 
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 covered by 
this report) provided in national law are the following:  

− 

− 

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.169 

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

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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.  

Positive  action  provisions  were  discussed  in  R  (on  the  application  of  Z  and  another)  v 
London Borough of Hackney Council and Another170 (discussed in 3.2.9 above). Here the 
Supreme Court accepted a housing association giving priority to members of the Orthodox 
Jewish  community,  on  the  basis  that  it  was  a  proportionate  means  to  compensate  a 
disadvantaged community. The lower courts had accepted the correlation between poverty 
and deprivation in the Haredi community and their religion, and the Supreme Court upheld 
its finding that religion and belief discrimination was lawful as  a proportionate means of 
compensating for that disadvantage.171  

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 persons with disabilities 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 

170  [2020] UKSC 40 available at: https://www.bailii.org/uk/cases/UKSC/2020/40.html. 
171  Although it also raised issues of race discrimination, the case only considered the religion and belief aspects 

of the case.  

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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: 

‘…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) 

The adoption of practices encouraging such participation; and 
The modification or abandonment of practices that have or may have the   effect 
of restricting or discouraging such participation.’ 

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 persons with disabilities 

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

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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.172  

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.173  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).  

172  Equality Act 2006 s 20; Northern Ireland Act 1998 Sched 9 para 10.  
173  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. 

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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 23 290 (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 overstate how much of a barrier this places in practice to litigation.  

Persons with disabilities 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 persons with disabilities (Section 19, 20B &21B DDA, Sections 20 & 29 EqA), 
there  continue  to  be  occasions  when  persons  with  disabilities  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.174  

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  2020-21.175 
There  is  no  equivalent  data  on  the  amount  of  goods  and  services,  education  or  social 
protection cases brought before the county courts.  

174  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. 

175  At the time of compiling the report, figures for 2021 were not available.  

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Employment Tribunal Disposals, 2017-20176 

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

2017-18 

2018-19 

2019-20177 

3 649 
1 684 
1 732 
386 
200 

4 935 
2 346 
1 917 
504 
329 

6 265 
2 807 
1 754 
599 
405 

The following tables indicate the outcome of cases disposed of by the employment tribunals 
in 2017-2020. The very low rate of success and high rates of settlement are noteworthy. 
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, 2017-18178 179 

Nature of Claim 

of 

Withdrawn 

No 
claims 

Formally 
settled 

Full hearing 

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

Successful 

Unsuccessful 

3 649 

19 % 

40 % 

1 684 
1 732 
386 

18 % 
27 % 
22 % 

34 % 
18 % 
32 % 

200 

20 % 

38 % 

4 % 

3 % 
1 % 
3 % 

4 % 

2 % 

2 % 
1 % 
4 % 

2 % 

Outcome of Employment Tribunal cases, 2018-19180 

Nature of Claim 

No of 
claims 

Withdrawn 

Formally 
settled 

Full hearing 

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

Successful  Unsuccessful 

4935 

24 % 

37 % 

2346 
1917 
504 

26 % 
49 % 
24 % 

31 % 
21 % 
32 % 

329 

25 % 

33 % 

3 % 

3 % 
1 % 
3 % 

2 % 

8 % 

13 % 
5 % 
11 % 

7 % 

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

https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-october-to-december-2021.  

177 Data for latter part of 2020 is not available, but it is anticipated that case numbers will fall due to the impact 
of COVID-19. Fewer cases were brought, and the number of claims being heard has been reduced as many 
cases were put on hold, despite some hearings continuing online. 

178  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.  

179  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. 

180  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. 

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Outcome of Employment Tribunal cases, 2019-20181 

Nature of Claim 

of 

No 
claims 

Withdra
wn 

Formally 
settled 

Full hearing 

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

6 265 

27 % 

33 % 

2 807 
1 754 
599 

25 % 
21 % 
26 % 

28 % 
39 % 
24 % 

405 

28 % 

30 % 

Successful 

Unsuccessful 

3 % 

2 % 
2 % 
3 % 

2 % 

8 % 

13 % 
6 % 
15 % 

8 % 

d) 

Registration of national court decisions on discrimination cases  

In the UK, court decisions on 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.182 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.183 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. 

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

https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-2020. 
182  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. 

183  E.g. Stonewall intervened in a case on transgender rights: 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; 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 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. 

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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 
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).184  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 2017.185  

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’.186 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 2006187 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 

184  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). 

185  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. 

186  (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. 

187  Equality Act 2006, 16.02.2006, available at: www.legislation.gov.uk/ukpga/2006/3/contents. 

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EqA188 or (in NI)189 in relation to all of the activities considered to be within the scope of 
the  directives.190  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.191 DDA Section 17A; 
FETO 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  false evidence is  given, or  a false  allegation is made, in bad faith. 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.192  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.193 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.194 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 

188  S136. 
189  S17A DDA, Arts 52A, 54B RRO, Arts 38A, 40A FETO, regs 35, 38 SOR 2003, regs 42, 45 Age Regs.  
190  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).  

191  This does not apply to the very limited number of criminal offences created by the Act (s136(5)).  
192  DDA s55; RRO Art 4; FETO Art 3(4); SOR 2003 reg 4; Age Regs reg 4. 
193  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. 

194  EqA ss119, 124-126, 132-134, 139; DDA s17A & Sch 3; RRO Art 53; FETO Art 39; SOR 2003 reg 36, Age 

Regs reg 43. 

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(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’195  Section  124(7)  provides  that,  ‘If  a 
respondent 
to  comply  with  an  appropriate 
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, 

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 2020 an 
award of EUR 5.4 million was confirmed in a disability discrimination claim.196 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). Figures are all from the Ministry 
of Justice Tribunal statistics quarterly reports.197 

Employment tribunal awards age 2015-2020 

Year 
2015-16 
2016-17 
2017-18 
2018-19 
2019-20 

Average award  Median award 

Maximum award 

GBP 9 025 
GBP 35 663 
GBP 6 796 
GBP 26 148 
 GBP 38 794 

GBP 8 417 
GBP 15 198 
GBP 6 184 
GBP 12 365 
GPB 11 791 

GBP 16 263 
GBP 154 309 
GBP 10 432 
GBP 172 070 
GPB 243 636 

Employment tribunal awards disability 2015-2020 

Year 
2015-16 
2016-17 
2017-18 
2018-19 
2019-20 

Average award  Median award 

Maximum award 

GBP 21 729 
GBP 31 988 
GBP 30 698 
GBP 28 371 
GBP 27 043 

GBP 11 309 
GBP 10 235  
GBP 16 523 
GBP 12 156 
GBP 13 000 

GBP 257 127 
GBP 302 258  
GBP 242 130 
GBP 416 015 
GBP 265 719 

195  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. 

196  Employment Appeal Tribunal Royal Bank of Scotland PLC v AB UKEAT/0266/18/DA, 0187/18/DA 27.2.20, 
available at: https://www.bailii.org/uk/cases/UKEAT/2020/0266_18_2702.html. The original award was 
prior to 2020 and so does not appear in the statistics for 2020 below.  

197  Source: Ministry of Justice annual statistics and Employment Tribunal Statistics 

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

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Employment tribunal awards race 2015-2020 

Year 
2015-16 
2016-17 
2017-18 
2018-19 
2019-20 

Average award  Median award 

Maximum award 

GBP 14 185  
GBP 36 853  
GBP 34 322 
GBP 12 487 
GBP 9 801 

GBP 13 760  
GBP 13 141  
GBP 11 299 
GBP 7 882 
GBP 8 040 

GBP 43 735  
GBP 456 464  
GBP 124 979 
GBP 33 660 
GBP 30 330 

Employment tribunal awards religion/belief 2015-2020 

Year 
2015-16 
2016-17 
2017-18 
2018-19 
2019-20 

Average award  Median award 

Maximum award 

GBP 19 647 
GBP 20 344 
GBP 5 074 
GBP 4 767 
GBP 0 

GBP 16 174 
GBP 12 045 
GBP 5 696 
GBP 1 500 
GBP 0  

GBP 45 490 
GBP 74 648 
GBP 6 846 
GBP 12 000 
GBP 0 

Employment tribunal awards sexual orientation 2015-2020 

Year 
2015-16 
2016-17 
2017-18 
2018-19 
2019-20 

Average award  Median award 

Maximum award 

GBP 20 192 
GBP 6 026 
GBP 12 550 
0 
GBP 27 936 

GBP 20 192 
GBP 6 314 
GBP 12 550 
0 
GBP 9 245 

GBP 20 192 
GBP 8 460 
GBP 24 100 
0 
GBP 96 645 

Most successful discrimination cases result at least in an award of compensation for injury 
to  feelings.  In  2002,  the  Court  of  Appeal198  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.199  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).200 

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 

198  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. 

199  These guidelines are applicable across the UK. 
200  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. 

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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 2015201 
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 
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. 

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

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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.  In  2021,  the  Committee  has  held  inquiries  on  matters  including  how  the 
Government  Equalities  Office  (GEO)  is  delivering  on  its  responsibilities;  examining  the 
Government’s proposed changes to the Gender Recognition Act 2004; and the fairness of 
the UK asylum process, looking at the experiences of people seeking asylum who have a 
range of protected characteristics (as defined in the UK’s Equality Act).  

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. 
Moreover, concern has been expressed about the Government’s commitment to equality, 
reflected  in  appointments  to  the  EHRC  made  in  2020;202  and  Brexit  also  gives  rise  to 
concerns, given the removal of EU supervision of UK commitments to equality laws.  

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.  At  the same time, 
there is considerable public support for equality and diversity, and considerable concern at 
the  unequal  impact  of  coronavirus,  particularly  on  ethnic  minorities,  older  people  and 
people  with  underlying  health  conditions.  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.  

202  See Flash Report United Kingdom – Appointment of new commissioners to the EHRC available at: 

https://www.equalitylaw.eu/country/united-kingdom. 

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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. In March 2021, the EHRC had 
200  staff  (199  full-time  equivalent).  Its  resource  budget  for  2020-21  (excluding 
depreciation) consisted of GBP 17.1 million administration and programme funding.203 

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.  

203  In addition, it received funding of £0.5 million for capital expenditure. 

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Funding is determined by the designated Secretary of State out of his or her departmental 
budget. In 2020-21 the ECNI received GBP 5.391 million. The ECNI has responsibility for 
the recruitment and management of staff. In 2020-21, it employed 73 full-time equivalent 
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 
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.204  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, although 
they note the concerns about the commitment to equality of recent appointments to the 
EHRC made in 2020.205 

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  and human  rights. The ECNI covers  age,  disability,  race,  religious  or  similar 
philosophical beliefs 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 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.206 

204  See Northern Ireland Act 1998, para 12 Schedule 8; see Equality Act 2006, para 42 Schedule 1.  
205  See Flash Report United Kingdom – Appointment of new commissioners to the EHRC available at: 

https://www.equalitylaw.eu/country/united-kingdom.  

206  Eq A ss28-29, Northern Ireland Act 1998 ss73-74.  

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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 

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 in 2021 include an inquiry into how older adults, persons 
with disabilities and unpaid carers can challenge local council decisions about social care 
and support in England and Wales; an investigation after a whistle-blower suggested that 
the owners of a holiday company were using a booking policy that excluded Gypsies and 
Travellers; and an inquiry into the treatment and experience of ethnic minority workers in 
lower-paid roles in the health and social care sectors.207 

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 persons with disabilities.  

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).208  

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

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

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

208  See Section 6.2a above. 

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● 
● 
● 

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.209  

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. 

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) 

Roma and Travellers 

EHRC 
The Equality and Human Rights Commission has made support for Travellers and Roma a 
central part of its legal strategy.210 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. In 2021, after a whistle-blower suggested that the owners of a holiday company 
were using a booking policy that excluded Gypsies and Travellers, the EHRC investigated, 
leading  to  the  holiday  company  signing  a  legally  binding  agreement  with  the  EHRC  to 
ensure that such acts of discrimination do not happen again. 

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,211  as  well  as 
emphasising Traveller issues in much of its case-work and legal reform campaigning. 

209  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. 

210  See https://www.equalityhumanrights.com/sites/default/files/strategic_plan_-_web_accessible.pdf. 
211  See 

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

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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 recent inquiries include how 
the Government Equalities Office (GEO) is delivering on its responsibilities; and the fairness 
of the UK asylum process, looking at the experiences of people seeking asylum who have 
a range of protected characteristics (as defined in the UK’s Equality Act). Other inquiries 
include ‘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’.212 

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.  

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

equalities-committee/.  

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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).213  The  UK  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 
2019.214  In the same year the Ministry of Housing, Communities  and Local Government 
launched  a  national  strategy  to  tackle  entrenched  inequality  and  improve  the  lives  of 
Gypsy, Roma and Traveller communities, and in 2020 additional support was provided to 
help overcome gaps in learning caused by COVID-19.  

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,215 the Community 
Law Partnership216 the Traveller Movement217 and the Roma Support Group.218 

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 

213  www.gov.scot/Topics/People/Equality/gypsiestravellers/strategy. 
214  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. 

215  Friends Families and Travellers: www.gypsy-traveller.org/. 
216  Community Law Partnership: www.communitylawpartnership.co.uk/. 
217  Traveller Movement: travellermovement.org.uk/. 
218  Roma Support Group: romasupportgroup.org.uk. 

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age. Legislative provisions found contrary to the principle of equal treatment on grounds 
of age have been repealed or retained where they can be objectively justified under the 
provisions  of  the  directive.  Following  the  departure  of  the  UK  from  the  EU  on 
31 January 2020, from 2021 onwards, GB courts should normally continue to interpret the 
Equality  Act  2010  in  line  with  EU  Court  decisions  made  before  the  end  of  2020.  The 
Supreme Court and the Court of Appeal may depart in some circumstances from the case 
law  of  the  CJEU,  while  being  bound  by  the  provisions  of  Directives  2000/78/EC  and 
2000/43/EC.  From  2021  onwards,  when  interpreting  UK  laws  which  are  based  on  EU 
Directives (such as the Equality Act provisions which implement EU Equality Directives), 
GB courts are not bound by post-2020 EU court decisions but may have regard to them. 
Under  the UK-EU Withdrawal Treaty, Northern Ireland continues to be bound by the EU 
Equal  Treatment  Directives  and  to  interpret  them  in  conformity  with  post-2020  ECJ 
decisions. 

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.219 

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)). 

219  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. 

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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. Since the end of 2019,  the Rt Hon Elizabeth Truss MP, Secretary of State for 
International  Trade,  and  then  Secretary  of  State  for  Foreign,  Commonwealth  and 
Development  Affairs  has  been  the  Minister  for  Women  and  Equalities.  The  Government 
Equalities Office has responsibility within Government for equality strategy and legislation 
in the UK.220  

The  Scottish  Government  and  Welsh  Government  have  race  equality  frameworks  and 
action plans.221  

There  is  no  anti-racism  or  anti-discrimination  National  Action  Plan  in  the  England  or 
Northern Ireland, beyond the work of the respective equality commissions.  

The UK Government has  a Race  Disparity Unit within the Cabinet Office, which collects, 
analyses and publishes Government data on the experiences of people from different ethnic 
backgrounds. In 2021, the Race Disparity Unit supported a Commission on Race and Ethnic 
Disparities, which reported in April 2021.222 

220 See: https://www.gov.uk/government/organisations/government-equalities-office/about. 
221 See: https://www.gov.scot/policies/race-equality/scotlands-race-equality-framework/; 

https://gov.wales/race-equality-action-plan-anti-racist-wales.  

222  See: https://www.gov.uk/government/publications/the-report-of-the-commission-on-race-and-ethnic-

disparities/foreword-introduction-and-full-recommendations#full-recommendations. 

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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  positive  duties  are  embedded  in  the  practice  of  many  public  and  private 
organisations with many schemes dedicated to enhancing and developing equality. 
Example include: Advance  HE’s  Race  Equality Charter,  which  aims  to  improve  the 
representation, progression and success of Black, Asian and Minority Ethnic staff and 
students  within  higher  education;223  LGBT+  history  month224celebrated  annually 
across workplaces, education settings and businesses; and the Disability Confident 
employer scheme for employers.225  
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.  
Regarding  artificial  intelligence,  in  November  2020  the  Government  published  an 
independent review into bias in algorithmic decision-making.226 This review considers 
the impact that an increasing use of algorithmic tools is having on bias in decision-
making, the steps that are required to manage risks, and the opportunities that better 
use of data offers to enhance fairness. 

   https://www.advance-he.ac.uk/equality-charters/race-equality-charter.  
224  See: https://lgbtplushistorymonth.co.uk/.  
225  See: https://www.gov.uk/government/collections/disability-confident-campaign. An independent Steering 

Group reported on the Public Sector Equality Duty (PSED) in 2013 
(https://www.gov.uk/government/publications/the-independent-steering-groups-report-of-the-public-
sector-equality-duty-psed-review-and-government-response). This review, and alternative views of its 
effectiveness is discussed in Manfredi, Vickers, and Clayton Hathway. ‘Public sector equality duty: enforcing 
equality rights through second-generation regulation’, Industrial Law Journal 47 (3) (2018) pp. 365-398. 

226  Available at: https://www.gov.uk/government/publications/cdei-publishes-review-into-bias-in-algorithmic-

decision-making/main-report-cdei-review-into-bias-in-algorithmic-decision-making. 

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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). 
Following the departure of the UK from the EU, in  GB the Supreme Court and the 
Court of Appeal may depart in some circumstances from the case law of the CJEU, 
while being bound by the provisions of Directives 2000/78/EC and 2000/43/EC. From 
2021 onwards, when interpreting UK laws that are based on EU Directives (such as 
the Equality Act provisions that implement EU Equality Directives), GB courts are not 
bound by post-2020 EU court decisions but may have regard to them. This creates a 
risk that non-discrimination law could be less well protected in GB. However, in 2021 
there are no examples of any divergence in interpretation of non-discrimination law. 

11.2  Other issues of concern  

There are now fewer obstacles to Parliament undermining aspects of the Equality Act 2010 
(EA),  as  the  UK  is  no  longer  directly  bound  by  EU  law.  The  executive  can  now  amend 
primary legislation without full Parliamentary scrutiny under the EU Withdrawal Act (which 
allows changes to be made using secondary legislation). This could include the power to 
amend aspects of equality law without full Parliamentary safeguards. 

Other concerns: 
There  are  ongoing  concerns  noted  above  about  the  difficulties  in  accessing  additional 
education funding (Pupil Premium) for Traveller children (see 3.2.8a above). 

There  are  ongoing  concerns  that  the  current  uncertainty  around  the  coverage  of  self-
employed workers and volunteers with the effect that the material scope of UK law may 
not fully reflect that of the directives in every respect (see 3.2.1.a and b 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 in 2020. It is feared that following the UK 

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exit from the EU, those EU citizens without settled status may face similar difficulties to 
those faced by the ‘Windrush generation’.227  

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. 
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. Again there is concern that similar difficulties 
may be faced for EU citizens without settled status following the UK exit from the EU.  

In 2020, the COVID-19 pandemic revealed systemic inequalities in the UK, which continue 
in 2021. In particular, the impact of the virus was greater for ethnic minorities, older people 
and people with underlying health conditions. 228 

During 2020, a number of new commissioner appointments were made to the Equality and 
Human Rights Commission. Concerns have been raised by equalities campaigners  about 
the commitment of some appointees to the principles of equality, and about diversity within 
the senior management of the Commission.229 

In  April  2021,  the  Commission  on  Racial  Disparities  reported.  While  the  Commission’s 
report included data on racial disparities, concerns were raised about the extent to which 
the  role  of  racism  was  downplayed.230  The  Commission  noted  the  many  instances  of 
success  among  minority  communities,  while  concluding  that  many  cases  of  educational 
failure and crime were the result of family breakdown rather than racism, and noting the 
social and economic problems facing the white working class. 

AI: 
Concerns  related  to  the  equality  implications  of  the  increasing  use  of  AI  are  well 
documented in the UK. Examples include concerns about discrimination in the provision of 
online  services  created  by  discriminatory  assumptions,  including  in  relation  to  sexual 
orientation, embedded in algorithms;231 and concerns about the equality impact of the use 
of  AI  in  hiring  decisions,  including  concerns  about  race  discrimination.232  A  number  of 
reports have been commissioned by Government considering the equality implications of 
AI, for example a report on risks of bias in the use of facial recognition technology,233 and 
a House of Lords Liaison Committee report on ‘AI in the UK: No room for  complacency’ 
which notes issues regarding bias and prejudice in AI.234  

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

settlement-scheme-new-report-finds/. 

228  Public Health England (2020), Disparities in the risk and outcomes of COVID-19, available at 

https://www.gov.uk/government/publications/covid-19-review-of-disparities-in-risks-and-outcomes. 

229  For a general assessment of these appointments see: 

https://www.theguardian.com/society/2020/nov/30/politicising-ehrc-five-controversial-appointments. 
230  See, for example, this report: https://www.theguardian.com/world/2021/mar/31/racial-disparities-in-the-

uk-key-findings-of-the-report-and-what-its-critics-say.  

231  Documented at https://ai-lawhub.com/ai-and-discrimination/. 
232  Documented at https://www.ifow.org/publications/artificial-intelligence-in-hiring-assessing-impacts-on-

equality. 

233  https://www.gov.uk/government/publications/cdei-publishes-briefing-paper-on-facial-recognition-

technology/snapshot-paper-facial-recognition-technology. The report does not specify which grounds suffer 
from bias.  

234  https://publications.parliament.uk/pa/ld5801/ldselect/ldliaison/196/19602.htm. The report does not specify 

which grounds suffer from bias. 

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12  LATEST DEVELOPMENTS IN 2020 

12.1  Legislative amendments 

Amendments to the Equality Act 2010 are listed with the online version of the Act.235 There 
has been no significant legislative amendment in 2021 for the purpose of this report. 

12.2  Case law 

Age 

Name of the court: Employment Appeal Tribunal 
Date of decision: 27 September 2021 
Name of the parties: Pitcher v University of Oxford and University of Oxford v Ewart 
Reference number: EA-2019-000638-RN, EA-2020-000128-RN 
Link: https://www.bailii.org/uk/cases/UKEAT/2021/2019-000638.pdf 
Brief  summary:  Professor  Pitcher  was  an  Associate  Professor  of  English  Literature  at 
Oxford University as well as being employed as an Official Fellow and Tutor in English at 
St  John’s  College.  On  reaching  the  age  of  67,  he  was  compulsorily  retired  from  both 
employments, the employers relying on the Employer Justified Retirement Age (EJRA) to 
justify  any  resulting  age  discrimination.  The  EJRA  scheme  operated  by  the  employers 
allowed  employees  to  apply  for  an  extension,  but  Professor  Pitcher’s  application  for  an 
extension of his employment was  refused. An ET dismissed Professor  Pitcher’s claims of 
direct age discrimination and unfair dismissal, finding that the EJRAs were justified and the 
dismissals fair. Professor Pitcher appealed. Professor Ewart was an Associate Professor in 
Atomic  and  Laser  Physics  at  Oxford  University.  He  initially  obtain  an  extension  of  his 
employment by taking up a fixed-term position. His application for a further extension was 
unsuccessful and he was also compulsorily retired. A different ET upheld Professor Ewart’s 
claims of direct age discrimination and unfair dismissal, finding that the University had not 
shown  the  EJRA  to  be  justified.  The  University  appealed  the  decision  on  the  age 
discrimination claim.  

The  two  appeals  were  combined  and  heard  by  the  Employment  Appeal  Tribunal,  which 
found  that  the  EJRA  has  three  legitimate  aims:  inter-generational  fairness;  succession 
planning by maintaining predicable retirement dates; and equality and diversity. The EJRA 
is said to achieve these aims by ensuring vacancy creation is not delayed; and recruitment 
into senior academic roles might take place from a younger, more diverse cohort. These 
aims  were  accepted  as  legitimate.  The  EAT  held  that  neither  ET  had  erred  in  law  in 
assessing the whether the application of the EJRA was justified as a proportionate means 
to  achieve  the  legitimate  aims.  Each  had  reached  a  conclusion  which  was  based  on 
evidence before them and after proper assessment of the proportionality of imposing the 
EJRA on the case before it. The EAT held that the nature of the proportionality assessment 
was that different ETs could reach different conclusions even when considering the same 
measure adopted by the same employer.  

Religion and belief 

Name of the court: Employment Appeal Tribunal 
Date of decision: 10 June 2021 
Name of the parties: Maya Forstater v CGD Europe and Others  
Reference number: UKEAT/0105/20/JOJ 
Link: https://www.gov.uk/employment-appeal-tribunal-decisions/maya-forstater-v-cgd-
europe-and-others-ukeat-slash-0105-slash-20-slash-joj 

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

76 

 
 
 
 
 
 
 
 
 
  
 
Country report - Non-discrimination – United Kingdom – 2022 

Brief summary: The claimant holds gender-critical beliefs, which include the belief that 
sex is immutable and should not be conflated with gender identity, and that trans women 
are not women. She alleged that she was discriminated against when her contract was not 
renewed following complaints from colleagues at work that her views, expressed on social 
media, were offensive and transphobic. At the preliminary hearing on whether her belief 
was protected, the Employment Tribunal decided her belief  was not protected under the 
Equality Act 2010, on the basis that these beliefs were incompatible with human dignity 
and fundamental rights of others, and thus did not meet the criteria for being a protected 
belief. The Tribunal drew attention to the fact that the beliefs were absolutist, and that it 
was a core component of the belief that she would refer to people by the sex she considered 
appropriate even if to do so were to violate their dignity. The claimant appealed.  

The Employment Appeal Tribunal (EAT) held that the belief was a protected belief. A belief 
should  be  excluded  from  protection  only  if  it  was  the  kind  of  belief  akin  to  Nazism  or 
totalitarianism  and  thereby  liable  to  be  excluded  from  the  protection  of  rights  under 
Articles 9  and  10  of  the  European  Convention  of  Human  Rights  (ECHR)  by  virtue  of 
Article 17  thereof.  The  claimant’s  gender-critical  beliefs,  which  were  widely  shared,  and 
which  did  not  seek  to  destroy  the  rights  of  trans  persons,  clearly  did  not  fall  into  that 
category. The claimant’s belief, while offensive to some, and notwithstanding its potential 
to  result  in  the  harassment  of  trans  persons  in  some  circumstances,  fell  within  the 
protection under Article 9(1), ECHR and therefore within the protection of the Equality Act 
2010. The case was  remitted to a freshly constituted  tribunal to determine whether the 
treatment about which the claimant complained was because of or related to her belief. 

Religion and belief and sexual orientation 

Name of the court: Court of Appeal 
Date of decision: 24 September 2021 
Name of the parties: R (Cornerstone (Northeast) Adoption and Fostering Service Ltd)) v 
The Office for Standards In Education, Children’s Services and Skills 
Reference number: [2021] EWCA Civ 1390 
Link: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1390.html 
Brief  summary:  Cornerstone  is  a  charity  which  offers  foster  and  permanent  homes  to 
children in the care of local authorities. The charity operates according to its perception of 
evangelical Christian principles. Carers have to abide by its Statement of Beliefs and Code 
of Practice which requires staff, volunteers and carers to be evangelical Christians and to 
refrain  from  ‘homosexual  behaviour’  as  described  in  the  Code of  Practice. In  effect,  the 
only potential carers Cornerstone accepts are evangelical married heterosexual couples of 
the  opposite  sex.  Ofsted  is  a  statutory  body  whose  functions  include  the  registration, 
regulation  and  inspection  of  adoption  and  fostering  agencies.  Following  an  inspection, 
Ofsted concluded that Cornerstone’s recruitment policy violated provisions of the Equality 
Act  2010  (EA  2010)  prohibiting  discrimination  on  grounds  of  sexual  orientation  in  the 
provision of goods and services. It required Cornerstone to change its policy.  

In  this  legal  claim,  Cornerstone  challenged  Ofsted’s  conclusions.  First,  it  argued  that 
Cornerstone  was  not involved  in  the  provision of  services. Secondly, it  argued that  any 
discrimination was because of homosexual behaviour and not because of sexual orientation 
such that the refusal to recruit gay  and lesbian foster carers  did not discriminate either 
directly or indirectly on grounds of sexual orientation. Thirdly, it argued that it was covered 
by  an  exception  available  for  charities  that  limit  their  benefits  to  persons  who  share  a 
protected characteristic, in this case religion or belief. Cornerstone also argued that that 
Ofsted’s report infringed its rights to religious freedom and freedom of expression.  

The High Court held that Cornerstone was offering a service to potential foster parents. It 
also fulfilled a public function as it provided carers for children who were under the care of 
the state. Also, the recruitment policy did discriminate on grounds of sexual orientation, 
both directly and indirectly. Any indirect discrimination could not be  justified. Moreover, 

77 

 
 
 
 
 
 
Country report - Non-discrimination – United Kingdom – 2022 

the  exception for  charities  did not  apply in  this  case  as  the limit  was  based not on  the 
religion or belief of carers, but on their sexual orientation. It held that there was no breach 
of Cornerstone’s rights to freedom of religion (the non-recruitment of gay and lesbian foster 
carers was not a manifestation of religious belief and, in any event, any interference was 
a  proportionate  means  of  achieving  a  legitimate  aim)  and  freedom  of  expression  (any 
interference was a proportionate means of achieving a legitimate aim).  

The  case  was  appealed  to  the  Court  of  Appeal  on  several  grounds  including  that 
Cornerstone’s  policy  did  not  directly  discriminate  on  grounds  of  sexual  orientation;  and 
that the policy was a proportionate means of achieving a legitimate aim and so any indirect 
discrimination  was  lawful.  The  Court  of  Appeal  upheld  the  decision  of  the  High  Court. 
Cornerstone’s  policy  which  specifically  requires  carers  not  to  engage  in  homosexual 
behaviour,  ‘is  as  clear  an  instance  of  direct  discrimination  ‘because  of’  a  protected 
characteristic as can be imagined’. Alternatively, any indirect discrimination could not be 
justified.  Moreover,  the  Court  of  Appeal  refused  the  right  to  appeal  on  the  question  of 
whether  Cornerstone  was  a  ‘service  provider’,  effectively  confirming  the  High  Court’s 
decision on this point.  

Status 

Name of the court: Supreme Court 
Date of decision: 19 February 2021 
Name of the parties: Uber BV v Aslam  
Reference number: [2021] UKSC 5 
Link: https://www.supremecourt.uk/cases/docs/uksc-2019-0029-judgment.pdf 
Brief summary: Uber provides a private hire vehicle booking service in the UK whereby 
journeys  are  booked through  a  smartphone  app,  which  connects  passengers to  drivers. 
The respondents are drivers who are or were active users of that app, and their case was 
brought as a test case to establish their employment status. The drivers claimed that they 
were ‘workers’ for the purposes of the Employment Rights Act 1996, the National Minimum 
Wage Act 1998 and the Working Time Regulations 1998 while actively using the app. This 
status would also give rise to rights under the Equality Act 2010. The claimants argue that 
the respondents were independent, third-party contractors and not ‘workers’. In the lower 
courts,  the  drivers  had  been  found  to  be  ‘workers’  when  they  had  the  claimants’  app 
switched on and were able and willing to accept assignments. The claimants appealed to 
the Supreme  Court.  The  Supreme  Court unanimously  rejected Uber’s  appeal  and  found 
that the drivers were ‘workers’ for the purposes of the protective legislation 

78 

 
 
 
 
 
Country report - Non-discrimination – United Kingdom – 2022 

ANNEX 1: MAIN TRANSPOSITION AND ANTI-DISCRIMINATION LEGISLATION 

Country:  
Date:   

United Kingdom 
1 January 2022      

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 

79 

 
 
 
 
 
Country report - Non-discrimination – United Kingdom – 2022 

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 

80 

 
 
 
 
Country report - Non-discrimination – United Kingdom – 2022 

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 

81 

 
 
Country report - Non-discrimination – United Kingdom – 2022 

ANNEX 2: INTERNATIONAL INSTRUMENTS 

Country:  
Date:   

United Kingdom 
1 January 2022 

Instrument  Date of 

signature  

Date of 
ratification  

04.11.1950  08.03.1951 

European 
Convention 
on Human 
Rights 
(ECHR) 

Protocol 12, 
ECHR 

No 

No 

Derogatio
ns/ 
reservatio
ns 
relevant 
to 
equality 
and non-
discrimina
tion 
A 
derogation 
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 

07.11.1997  No 

N/A 

16.09.1968 

20.05.1976 

Yes 

Right of 
individual 
petition 
accepted? 

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

Yes 

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

No 

Ratified 
collective 
complaints 
protocol? 
No. 
No 

No 

No 

No 

Revised 
European 
Social 
Charter 

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

16.09.1968  20.05.1976 

None 

No 

No 

01.12.1995 

15.01.1998 

None 

No 

No 

82 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – United Kingdom – 2022 

Instrument  Date of 

signature  

Date of 
ratification  

Right of 
individual 
petition 
accepted? 

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

Derogatio
ns/ 
reservatio
ns 
relevant 
to 
equality 
and non-
discrimina
tion 

Social and 
Cultural 
Rights 
Convention 
on the 
Elimination 
of All Forms 
of Racial 
Discrimina-
tion 
ILO 
Convention 
No. 111 on 
Discriminati
on 
Convention 
on the 
Rights of the 
Child 

Convention 
on the 
Rights of 
Persons with 
Disabilities  

16.09.1968 

20.05.1976 

None 

No  

No 

08.06.1999 

None 

No 

No 

No 

No 

30.03.2007  08.06.2009 

19.04.1990 

16.12.1991 

30.03.2007  08.06.2009 

A 
reservation 
applies as 
regards the 
obligation 
to detain 
children 
and adults 
separately  
Reservation
s apply as 
regards 
access to 
the  
military; 
the special 
education 
of  
children 
with 
disabilities; 
and 
immigratio
n  

83 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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