IN this article, we look at recent case law and legislative developments with regard to anti-discrimination provisions.
Firstly, the House of Lords has accepted the Government’s decision to amend S.9(5) of the Equality Act 2010 so that it must legislate, following a period of consultation, to insert caste as a subsection of the protected characteristic of race.
The amendment also introduces a “sunset” clause whereby a minister can review the operation of protection against caste discrimination after five years to judge whether it remains necessary.
If the protection has become unnecessary, then a minister may repeal it.
Legislating in this way allows the Government time to widely consult on what form protection against caste discrimination should take.
The consultation will also consider issues such as the guidance needed by business on caste identification and monitoring and the evidence that should be collected for any eventual statutory review.
The Government also stated that it intends to continue with its “Talk for a Change” education programme in relevant communities, which it considers will have an important role in effecting cultural change over time.
The Government will also work closely with the EHRC on broader issues of caste and caste-related discrimination.
Moving on to review a recent case law development, Durrani v London Borough of Ealing considered the issue of victimisation.
This treatment occurs where A treats B less favourably because A suspects or knows that B has done or intends to do a “protected act”.
A protected act includes bringing discrimination proceedings, giving evidence in connection with discrimination proceedings or making an allegation of unlawful discrimination.
In this case, the Employment Appeals Tribunal (EAT) held that a non-specific complaint of “discrimination” (meaning unfair treatment, but not linked to a protected characteristic such as age, race, and disability) is not a protected act for victimisation purposes.
Less than two weeks before his dismissal on purported grounds of redundancy, the claimant submitted a grievance complaining of bullying and harassment and mentioning “discrimination'” which was later clarified as discrimination in the sense of being used as a scapegoat but not on grounds of race.
The claimant brought several unsuccessful claims in the Employment Tribunal, which included complaints of harassment, victimisation and discrimination.
The EAT upheld the Tribunal’s decision to strike out the victimisation (and other) claims.
It held there could be no protected act, and thus no victimisation claim, because the claimant had never asserted the unfair treatment he believed he had received was on grounds of his race.
That simple point was fatal to the victimisation claim.