On twitter, after a period of great exasperation I wrote a thread that started: “I am coming to the view that, if or when I am ruler of the world, anyone who wants to speak about UK Equality[1] law matters on social media has to first sit an exam which I will set.”
I then set out a list of six questions to be answered, in this mythical situation. Then I promised to provide suggested answers, so here goes with answers 1 and 2 (I will answer the others in later blogs):
1. What are the nine protected characteristics?
In the Equality Act 2010, nine characteristics were identified as ‘protected characteristics’. These are the characteristics where evidence shows there is still significant discrimination in employment, provision of goods and services and access to services such as education and health. They are:
age;
disability;
gender reassignment;
marriage and civil partnership;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.
They are then defined in ss5-12 and 17 and 18 of the Act.
It was pointed out by my good friend, lawyer Jo Chimes that, as I mentioned UK, there is a 10th in Northern Ireland, namely political opinion (see The Fair Employment and Treatment (Northern Ireland) Order 1998).
So, if you want to bring a claim under the Equality Act you have to show how the conduct complained was linked to one of the protected characteristics; and how you are protected by the Act.
2. What are comparators and why are they important?
If you want to show you’ve suffered unlawful discrimination or bring an equal pay claim, you need to compare your treatment with the treatment of someone else who doesn’t have the same protected characteristic as you. The Equality Act calls this person a “comparator”.
So, a women arguing she was overlooked for a payrise because of sex discrimination would need a man as a comparator. If arguing it was because of her race, it would need to be someone not of her race and so on. You cannot use someone who shares your protected characteristic as a comparator.
In direct discrimination claims (s13), you have to show evidence of less favourable treatment (because of a protected characteristic) than a valid comparator. The comparator can be a real person, similar in all material circumstances but who doesn’t share your PC, or a hypothetical comparator (a thought experiment based on what it is likely to have happened in the same situation if there was a real comparator). Lawyers in these cases can spend considerable time arguing about what is a valid hypothetical comparator for the particular circumstances.
In Chapter 3 of the Act, equal pay claims require a real comparator; so a hypothetical comparator is not allowed. There is some concern that if gender (actually sex) self ID is introduced, this could defeat an otherwise valid, individual equal pay claim.
In indirect discrimination claims (s19 ) and duty to do reasonable adjustments (s20), comparators are also required but in a way too complex for this introductory exam.
So, those are my suggested answers. Will post parts two and three, when I get some time.
[1] [1] Ive correct my spelling mistake from the original