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Does it matter that dual discrimination has been shelved?

March 25, 2011

One of the new concepts introduced by the Equality Act 2010 is the concept of dual discrimination. That is the idea that it is unlawful to discriminate against an individual on the basis of the combination of two protected characteristics (eg: sex and race; sex and age; race and sexual orientation etc), rather than on the basis of a single protected characteristic alone.

The whole reason for introducing such a concept is based on the premise that it might be possible to avoid a finding of discrimination by relying on a combination of characteristics rather than a single characteristic. When you deconstruct this, it is essentially the same as the flawed pub argument that is often repeated along the lines of: “I can’t be homophobic, because I [even] have gay friends” (yes I have even seen that argument used in an ET case before), or similar lines for other types of discrimination.

So I am afraid that this is a prime example of lawyers like me trying to be far too clever. The lawyer’s argument would go like this:

Hypothetical scenario in which an employer applied a rule that women over 40 may not apply for a job. The argument goes that, this would neither be direct sex or age discrimination, as not all women would be precluded from applying and not all persons over 40 would be precluded from applying. Instead the rule would amount to combined discrimination under section 14 of the Equality Act 2010, which is not unlawful at present.

That is in fact an argument that the BBC lawyer ran in the Miriam O’Reilly, Countryfile  (Age Discrimination, Sex Discrimination) case a few months back. But it didn’t work. The employment tribunal decided that when compared with another woman who was in the same position, but younger, it was apparent that age discrimination had occurred.

So do we need “Dual Discrimination”? I think not. A well argued case will succeed on a single strand of discrimination, whether or not discrimination has occurred on the basis of a combination of characteristics. So does it matter that dual discrimination probably won’t come into force? Probably not.

Having said that, the recent decision not to bring dual discrimination into force has come under a lot of criticism from gay and lesbian groups in particular, so watch this space.

Have you had any experiences relating to defending cases of combined strands of discrimination? Let me know what you think.

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From → employment law

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