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What is dual discrimination?
Written by Richard Jay on 29 April 2024
Protection against discrimination is a day one right for workers and is usually one of the first considerations that a well-advised employer will turn their mind to if things go wrong.
More recently, there has been talk around ‘dual discrimination’, with the Labour Party proposing to enact this previously unacted provision in the Equality Act 2010 as part of various extensions to discrimination laws. But what is dual discrimination, and how concerned should employers be about this concept?
What you need to know is that it as it stands today, if enacted, dual discrimination is unlikely to significantly change the discrimination law landscape in employment.
In the UK, protection from discrimination for workers rests upon nine “protected characteristics”. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation. The crux of the discrimination protection is whether or not a worker suffers a detriment because of a protected characteristic.
When things go wrong in a working relationship, discrimination matters – financially as well as morally.
What is dual discrimination?
The concept of dual discrimination comes from a dormant provision in the Equality Act 2010 that has never actually been enacted.
Dual discrimination ‘seemingly’ expands protections to cover individuals who, in theory, would not have been found to have been discriminated against based on two individual protected characteristics, but could arguably be found to be discriminated against based on a combination of those protected characteristics, e.g. being an older woman rather than age or sex independently. Notably the protected characteristics relevant for dual discrimination do not include marriage and civil partnership or pregnancy and maternity.
As drafted, the provisions apply to direct discrimination only and provide for a claim to be brought on the basis of the intersection between two (and not more) characteristics. The relevant characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. The characteristics of pregnancy and maternity and marriage and civil partnership were excluded due to the lack of available evidence that these characteristics, when combined with others, gave rise to any problems in practice.
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How do Employment Tribunals currently deal with dual discrimination?
The case of O’Reilly v BBC is insightful in considering the current approach to dual discrimination. O’Reilly argued that she was removed as a presenter on Countryfile and not offered other suitable work because she was both a woman and over 50.
The BBC brought the hypothetical argument, that a rule which prevented a woman over 40 from applying for a job would be neither 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.
This argument did not find favour with the Tribunal, who stated that here, age or sex did not need to be the sole reason, or even the principal reason, for her detrimental treatment. The Tribunal found that O’Reilly’s age was a significant factor in the BBC’s decision not to keep her as a presenter.
In the particular circumstances on the case, the Tribunal did not find sex discrimination. It is therefore unclear as to whether or not, if dual discrimination was enacted, it would have actually assisted the Claimant here.
This case strongly suggests that an employee who is directly discriminated against because of a combination of protected characteristics is likely protected by existing direct discrimination law, without the help of the dual discrimination provision. Many of the examples that you will read of online of where employees will gain protection because of dual discrimination will therefore already be covered by existing discrimination law.
Would enacting dual discrimination make any practical difference?
It is claimed that enacting dual discrimination would simplify the claims process, as it would mean Claimants could bring a single claim rather than multiple claims. For instance, a Black woman who faces sexism and racism would bring a single dual discrimination claim rather than two separate claims (one for sex discrimination and another for race discrimination).
Arguably, however, this will not simplify the process for Tribunals, Claimants, or employers. Simply put, a Claimant can already list multiple claims on a single claim form, and frequently do so. Moreover, in order to give a Judgment on a dual discrimination claim, the Tribunal will need to examine both elements of a dual discrimination claim. As such, we are yet to see how this will provide meaningful impact on the current landscape of discrimination law.
What should employers do?
It’s clear that Tribunals will carefully assess discrimination claims and look to provide protection to employees who have been discriminated against.
As ever, media reports surrounding this topic are likely to spark queries from employees and indeed claims – regardless of whether or not a law has come into force. With this in mind, when issues arise within a working relationship, employers should be particularly mindful to consider whether there are any discrimination concerns. We always recommend seeking specialist advice in these situations to assess and minimise risk.
It appears that a prospective Labour government is signalling its intention to enhance discrimination protection for employees. As such, there is real potential for the law on discrimination (and indeed other areas of employment law) to change. If a change in government does happen, it will be crucial for employers to keep their ‘ears to the ground’ over the coming years for notification of these changes and update policies and procedures accordingly.
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Protect your business against discrimination pitfalls
Did you know that compensation in discrimination claims is ‘uncapped’? This means there is no limit to the amount employees could be awarded if their claim is successful. In the 2022/23 period, the average award for disability discrimination was £45,435, highlighting the potentially significant costs to employers who fall foul of the law.
WorkNest is here to help you prevent and manage these issues, preserving your reputation and bottom line.
We assign dedicated Employment Law Advisers to guide you through any and all employee matters, including those with a discrimination element, so you can take commercial action while avoiding legal risks. Your dedicated advisers will also draft employee correspondence, help develop your policies, and provide optional Legal Expenses Insurance for added protection against claims.
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