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(1) | A person (A) discriminates against another (B) if, because of a protected |
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characteristic, A treats B less favourably than A treats or would treat others. |
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(2) | If the protected characteristic is age, A does not discriminate against B if A can |
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show A’s treatment of B to be a proportionate means of achieving a legitimate |
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(3) | If the protected characteristic is disability, A does not discriminate against B |
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(a) | A treats a third person who has a disability in a way which is permitted |
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(b) | B does not have the disability, and |
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(c) | A does not treat B in that way. |
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(4) | If the protected characteristic is marriage and civil partnership, this section |
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applies to a contravention of Part 5 (work) only if the treatment is because B is |
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married or a civil partner. |
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(5) | If the protected characteristic is race, less favourable treatment includes |
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segregating B from others. |
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(6) | If the protected characteristic is religion or belief, it does not matter whether |
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the religion or belief is also A’s. |
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(7) | If the protected characteristic is sex— |
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(a) | less favourable treatment of a woman includes less favourable |
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treatment of her because she is breast-feeding; |
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(b) | in a case where B is a man, no account is to be taken of special treatment |
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afforded to a woman in connection with pregnancy or childbirth. |
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(8) | Subsection (7)(a) does not apply for the purposes of Part 5 (work). |
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(9) | This section is subject to sections 16(6) and 17(7). |
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protected characteristics into line with that for race, sexual orientation and religion or belief in |
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• If an employer recruits a man rather than a woman because she assumes that women |
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do not have the strength to do the job, this would be direct sex discrimination. |
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• If a Muslim shopkeeper refuses to serve a Muslim woman because she is married to a |
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Christian, this would be direct religious or belief-related discrimination on the basis of |
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her association with her husband. |
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• If an employer rejects a job application form from a white man whom he wrongly |
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thinks is black, because the applicant has an African-sounding name, this would |
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constitute direct race discrimination based on the employer’s mistaken perception. |
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• If an employer advertising a vacancy makes it clear in the advert that Roma need not |
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apply, this would amount to direct race discrimination against a Roma who might |
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reasonably have considered applying for the job but was deterred from doing so |
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because of the advertisement. |
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Clause 14: Discrimination arising from disability |
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76. This clause provides that it is discrimination to treat a disabled person in a particular |
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way which, because of his or her disability, amounts to treating him or her badly and the |
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treatment cannot be shown to be justified. For this type of discrimination to occur, the |
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employer or other person must know, or could reasonably be expected to know, that the |
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disabled person has a disability. Also the person who treats the disabled person in that way |
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may still be liable for discrimination under this provision, whether or not the duty to make |
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reasonable adjustments has been complied with. |
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77. This clause is a new provision. The Disability Discrimination Act 1995 provided |
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protection from disability related discrimination but following the judgment of the House of |
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Lords in the case of London Borough of Lewisham v Malcolm [2008] UKHL 43, those |
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provisions no longer provided the degree of protection from disability related discrimination |
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that is intended for disabled people. This clause is aimed at re-establishing an appropriate |
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balance between enabling a disabled person to make out a case of experiencing a detriment |
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which arises because of his or her disability, and providing an opportunity for an employer or |
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other person to defend the treatment. |
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• An employee develops a visual impairment and can no longer operate a computer |
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without assistive technology. The employer makes an adjustment by providing a |
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Braille keyboard, but the firm’s computer system is not compatible with assistive |
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software. The employee is dismissed because he cannot do as much work as a non- |
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disabled colleague. If the employer sought to justify the dismissal, he would need to |
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show that it was a proportionate means of achieving a legitimate aim. |
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14 | Discrimination arising from disability |
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(1) | A person (A) discriminates against a disabled person (B) if— |
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(a) | A treats B in a particular way, |
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(b) | because of B’s disability, the treatment amounts to a detriment, and |
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(c) | A cannot show that the treatment is a proportionate means of achieving |
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(2) | Subsection (1) does not apply if A shows that A did not know, and could not |
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reasonably have been expected to know, that B had the disability. |
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(3) | It does not matter whether A has complied with a duty to make reasonable |
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adjustments in relation to B. |
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• A person with a learning disability is ejected from a restaurant because she is eating in |
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a messy way, which is an effect of her disability. As the restaurant owner shows that |
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he did not know, or could not reasonably be expected to know, that she was disabled, |
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he has not subjected her to a detriment because of her disability. |
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• If, in the example above, the restaurant owner had known that the customer was |
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disabled, he would have subjected her to discrimination arising from her disability, |
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unless he could show ejecting her was a proportionate means of achieving a legitimate |
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Clause 15: Gender reassignment discrimination: cases of absence from work |
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78. This clause provides that it is discrimination against transsexual people to treat them |
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less favourably for being absent from work because they propose to undergo, are undergoing |
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or have undergone gender reassignment than they would be treated if they were absent |
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because they were ill or injured. Transsexual people are also discriminated against in relation |
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to absences relating to their gender reassignment if they are treated less favourably than they |
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would be treated for absence for reasons other than sickness or injury and it is unreasonable to |
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treat them less favourably. |
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79. This clause is designed to replicate the effect of a similar provision in the Sex |
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• A female to male transsexual person takes time off work to receive hormone treatment |
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as part of his gender reassignment. His employer cannot discriminate against him |
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because of his absence from work for this purpose. |
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Clause 16: Pregnancy and maternity discrimination: non-work cases |
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80. This clause defines what it means to discriminate because of a woman’s pregnancy or |
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maternity, as distinct from her sex, in specified situations outside work. It protects a woman |
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from discrimination because of her current or a previous pregnancy. It also protects her from |
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maternity discrimination, which includes treating her less favourably because she is breast- |
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feeding, for 26 weeks after giving birth and provides that pregnancy or maternity |
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discrimination as defined cannot be treated as sex discrimination. |
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81. This clause is designed to replicate the effect of similar provisions in the Sex |
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Discrimination Act 1975 and extend the protection to cover discrimination in relation to public |
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functions, further and higher education, and to associations, where no such protection |
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15 | Gender reassignment discrimination: cases of absence from work |
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(1) | This section has effect for the purposes of the application of Part 5 (work) to the |
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protected characteristic of gender reassignment. |
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(2) | A person (A) discriminates against a transsexual person (B) if, in relation to an |
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absence of B’s that is because of gender reassignment, A treats B less |
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favourably than A would treat B if— |
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(a) | B’s absence was because of sickness or injury, or |
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(b) | B’s absence was for some other reason and it is not reasonable for B to |
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be treated less favourably. |
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(3) | A person’s absence is because of gender reassignment if it is because the |
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person is proposing to undergo, is undergoing or has undergone the process |
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(or part of the process) mentioned in section 7(1). |
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16 | Pregnancy and maternity discrimination: non-work cases |
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(1) | This section has effect for the purposes of the application to the protected |
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characteristic of pregnancy and maternity of— |
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(a) | Part 3 (services and public functions); |
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(c) | Chapter 2 of Part 6 (further or higher education); |
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(d) | Part 7 (associations). |
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(2) | A person (A) discriminates against a woman if A treats her less favourably |
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because of a pregnancy of hers. |
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(3) | A person (A) discriminates against a woman if, in the period of 26 weeks |
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beginning with the day on which she gives birth, A treats her less favourably |
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because she has given birth. |
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• A café owner must not ask a woman to leave his café because she is breast-feeding her |
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• A shopkeeper must not refuse to sell cigarettes to a woman because she is pregnant. |
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Clause 17: Pregnancy and maternity discrimination: work cases |
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82. This clause defines what it means to discriminate in the workplace because of a |
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woman’s pregnancy or pregnancy related illness, or because she takes or tries to take maternity |
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leave. The period during which protection from these types of discrimination is provided is the |
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period of the pregnancy and any statutory maternity leave to which she is entitled. During this |
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period, these types of discrimination cannot be treated as sex discrimination. |
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83. This clause is designed to replicate the effect of similar provisions in the Sex |
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• An employer must not demote or dismiss an employee, or deny her training or |
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promotion opportunities, because she is pregnant or on maternity leave. |
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• An employer must not take into account an employee’s period of absence due to |
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pregnancy-related illness when making a decision about her employment. |
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(4) | The reference in subsection (3) to treating a woman less favourably because she |
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has given birth includes, in particular, a reference to treating her less |
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favourably because she is breast-feeding. |
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(5) | For the purposes of this section, the day on which a woman gives birth is the |
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(a) | she gives birth to a living child, or |
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(b) | she gives birth to a dead child (more than 24 weeks of the pregnancy |
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(6) | Section 13, so far as relating to sex discrimination, does not apply to anything |
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done in relation to a woman in so far as— |
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(a) | it is for the reason mentioned in subsection (2), or |
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(b) | it is in the period, and for the reason, mentioned in subsection (3). |
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(7) | In this section and section 17, a reference to a woman being treated less |
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favourably is a reference to her being treated less favourably than is |
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17 | Pregnancy and maternity discrimination: work cases |
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(1) | This section has effect for the purposes of the application of Part 5 (work) to the |
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protected characteristic of pregnancy and maternity. |
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(2) | A person (A) discriminates against a woman if, in the protected period in |
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relation to a pregnancy of hers, A treats her less favourably— |
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(a) | because of the pregnancy, or |
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(b) | because of illness suffered by her as a result of it. |
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(3) | A person (A) discriminates against a woman if A treats her less favourably |
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because she is on compulsory maternity leave. |
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(4) | A person (A) discriminates against a woman if A treats her less favourably |
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because she is exercising or seeking to exercise, or has exercised or sought to |
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exercise, the right to ordinary or additional maternity leave. |
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(5) | For the purposes of subsection (2), if the treatment of a woman is in |
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implementation of a decision taken in the protected period, the treatment is to |
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be regarded as occurring in that period (even if the implementation is not until |
| 30 |
after the end of that period). |
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(6) | The protected period, in relation to a woman’s pregnancy, begins when the |
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pregnancy begins, and ends— |
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(a) | if she has the right to ordinary and additional maternity leave, at the |
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end of the additional maternity leave period or (if earlier) when she |
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returns to work after the pregnancy; |
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(b) | if she does not have that right, at the end of the period of 2 weeks |
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beginning with the end of the pregnancy. |
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(7) | Section 13, so far as relating to sex discrimination, does not apply to treatment |
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(a) | it is in the protected period in relation to her and is for a reason |
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mentioned in paragraph (a) or (b) of subsection (2), or |
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(b) | it is for a reason mentioned in subsection (3) or (4). |
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