Court of Appeal has recently confirmed that the legal test for direct discrimination has not been changed by the Equality Act 2010, even though it uses slightly different terminology from the legislation it replaced. Following from its similar pronouncement last month about the definition of victimisation in the Act, this represents a helpful clarification of the law.
This latest decision from the Court of Appeal concerned two claims from migrant domestic workers who had been treated extremely harshly. They argued that taking advantage of their precarious immigration status to impose harsh and at times illegal working conditions amounted to direct discrimination because of their nationality. Since nationality was one of the components in the legal definition of the protected characteristic of race, the claimed this amounted to direct discrimination because of their race.
The Court of Appeal decided that in this situation the claimants’ immigration status was part of the background facts, but not sufficiently closely connected with their detrimental treatment to justify a finding that it had been because of their nationality. The main point was that there were plenty of foreign nationals working in the UK whose conditions of leave to enter or remain permitted them to work freely, and would not therefore be so dependent on their current employer.
This decision contrasts with that taken in another recent appeal, this time at the Employment Appeal Tribunal. That case was about the way a police dog handler had been treated during her pregnancy and maternity leave. One of the two sniffer dogs she handled had been taken away from her, without a commitment to return the dog to her on her return from maternity leave. This meant that there was a loss in her earning capacity on her return which lasted several months.
The Metropolitan Police mounted a similar argument to the one which won the day at the Court of Appeal in migrant workers’ case. It said that the employment tribunal had been wrong to conclude this had been a case of direct discrimination, since it would have treated any officer who was not able to work for a similar period in the same way. The claimant’s pregnancy was therefore part of the background facts and not the cause of the less favourable treatment.
This time the employer’s appeal was turned down. The EAT agreed with the employment tribunal that the employer’s decision was “permeated” by the claimant’s pregnancy. It was not necessary for it to be the only, or even the main reason for the treatment, as long as it was a significant factor in the decision, as it clearly was in this case.
The Court of Appeal and the EAT both stated that its decision would have been exactly the same under the old law. The replacement of “on grounds of” with “because” when defining the connection required between the action of the employer and the protected characteristic did not make any difference.
As these contrasting outcomes show, it is not always easy to define the boundaries of unlawful discrimination. But at least the old case law continues to provide authoritative guidance, even though it will at times continue to be difficult to apply to new situations.