Dual discrimination – the claim that time forgot and a possible Labour Government

The principle of dual discrimination (or “combined discrimination”) has been lying dormant in the Equality Act 2010 (“EqA 2010”) since the legislation was drafted. Despite provisions for ‘combined discrimination’ being included in the EqA 2010, they have never been brought into force. However, the Labour Party has announced plans to dust off the concept should they be elected into Government and bring the hibernating provision into law.

What is dual discrimination?

A dual discrimination claim would allow a claimant to bring a claim if they have been subjected to discriminatory treatment because they have two qualifying protected characteristics. Section 14 of the EqA 2010 (yet to be enacted) provides that treating an individual less favourably because of a combination of two relevant protected characteristics will amount to direct discrimination and there will be no need for a claimant to show that there has been direct discrimination in respect of each characteristic separately. For the provision to apply, the two characteristics must interact in an inseparable manner, and it is the combination of the two that gives rise to the discrimination.

An example of this interaction, and a group that stands to benefit, are women experiencing symptoms of menopause. Women can often experience severe symptoms such as poor concentration, fatigue, poor memory or brain fog, which effect their ability to carry out their duties. Research conducted by the Fawcett Society and Channel 4 found that one in ten women between the ages of 45 and 55 have left their job because of symptoms of menopause. Case law included addressing such issues as a ‘disability’ related claim, with cases such as Lynskey v Direct Line finding that the Direct Line’s mishandling of Ms Lynskey’s symptoms did amount to disability discrimination and a failure to make reasonable adjustments (see our blog “Menopause Management – what can be learnt from Lynskey v Direct Line: “Be on it!”). However, Ms Lynskey, like previous women, had tried to bring separate claims for sex discrimination and age discrimination. These claims failed as her employer could show that they had treated others in the same age bracket or a man with a health condition in the same way as they treated Ms Lynskey. The adverse treatment is not solely because of gender, or age, it is the relationship between the two characteristics when combined, that gives rise to circumstances that arguably require protection without the need to satisfy the legal test of ‘disability’.

Kimberlé Crenshaw, an American civil rights advocate, was the first to describe the concept which she termed Intersectional Discrimination in her work demonstrating how black women experience racism differently from Black men and sexism differently from white women. When Dawn Butler was elected to UK parliament, she recounts an incident when entering a members-only lift and being told by a fellow male MP that, “this lift really isn’t for cleaners.” It would be difficult to identify whether the demeaning comment was made because Ms Butler is a woman, or because she is black. Dual discrimination would allow the tribunal to recognise that the underlying discrimination at play might be because both protected characteristics are present, and employees with more than one characteristic may experience discrimination differently.

Unless the wording of section 14 EqA 2010 is amended, the characteristics of pregnancy and maternity and marriage and civil partnership are excluded as it was thought that these characteristics when combined with others, did not give rise to any increased risk of discrimination.

Is the current protection enough?

Under the existing discrimination provisions, an employee does not have to show that one protected characteristic is the only or even the principal reason that that the employee suffered discriminatory treatment, it is sufficient to show that it is an “effective cause”. This means that a claimant can be successful in bringing a claim for discrimination on the basis of more than one characteristic.

As with any change to the law that offers increased protection to claimants, there is a risk that this will increase pressure on the employment tribunal and the burden on employers. However, as suggested in the Equality Impact Assessment conducted in 2009 when the EqA 2010 was a bill before Parliament, dual discrimination may, in practice, rarely be used as a standalone claim and would more often be brought simultaneously with separate claims regarding each protected characteristic as a way to avoid ‘fall between two stools’. Enacting the dual discrimination protections therefore might not lead to an increase in the number of claims.

The Labour Party have announced other major changes to employment law and the protection offered to employees and workers which, if achieved, may be a new dawn for employment law.

Should you require advice in relation to any of the matters raised in this blog, please contact Linky Trott or any other member of the Employment team.

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