Rory Byrom explains how a charity could end up being the victim of discrimination under the Equality Act
Everyone knows that individuals are entitled to protection from discrimination – even if they’re not sure of the exact rules that apply.
But a recent case represents a potentially far-reaching development by making clear that it’s not just people who are protected under the Equality Act.
The decision in an employment tribunal found that an organisation or company, which would include charities, can now bring a claim for discrimination under the legislation.
So, for example, an organisation that works with or champions the rights of elderly or disabled people may have cause to bring a claim where the organisation itself has been treated less favourably due to its association with that group.
When a person is more than a just a person
The law refers to different legal personalities, separated into natural persons (such as you or I) and non-natural persons, which includes organisations and companies. This distinction is important in terms of what you can and can’t do under law – two companies can merge, but they can’t marry!
The Equality Act protects persons from discrimination but doesn’t define a person. This recent case, EAD Solicitors LLP v Abrams, held that non-natural persons were therefore also protected from suffering less favourable treatment because of a protected characteristic.
The case involved age discrimination where an employer did not want to contract with a company because of the age of that company’s director.
This is a hugely important legal step in providing the means to tackle discrimination where before such behaviour may have been left unchallenged.
What does the law protect?
Protected characteristics are at the heart of anti-discrimination legislation. These are the grounds for discrimination which the Equality Act sets out as having special protection from prohibited conduct. There are nine protected characteristics:
- age
- disability
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- race
- religion or belief
- sex
- sexual orientation
What is prohibited conduct?
There are different ways in which discrimination can arise, the most obvious being direct discrimination where one person treats another person less favourably because of a protected characteristic.
Other categories of prohibited conduct could be indirect discrimination – where a policy or practice applied to all puts those with a protected characteristic at a disadvantage to those without the characteristic. Harassment – unwanted conduct because of a protected characteristic – also counts, as does victimisation, which is less favourable treatment as a result of asserting rights in relation to a protected characteristic.
Failure to comply with duty to make reasonable adjustments for disabled persons also counts as discrimination.
Unfortunately it is often the case that a person may face bullying at work. However, unless that bullying is because of one of the protected characteristics above, that person will not be able to bring any claim in relation to a breach of the Equality Act.
Discrimination by association
The case also acted as a reminder that you can also be protected from discrimination by association. A person is deemed to be discriminated against because of a protected characteristic. So, if an applicant for a job was unsuccessful because he volunteered with a gay rights charity, but he himself was a heterosexual, then that employer would still be discriminating against him by acting less favourably because of a protected characteristic.
Rory Byrom is a solicitor with Harper Macleod's employment team.
