The new Equality Act received royal assent in April 2010 and it includes a provision that will make it easier for employees to argue that they have suffered discrimination over a combination of factors.
The Act says that discrimination occurs if a person is treated less favourably, because of a combination of protected characteristics, than someone without either of those characteristics.
The protected characteristics are:
- gender reassignment
- religion or belief
- sexual orientation
This new right applies only to claims of direct discrimination and not indirect discrimination or harassment. People will not only be able to bring individual claims, i.e. of sex and age discrimination, but also for combined discrimination.
For this type of claim to succeed employees will need to show they have been treated less favourably than others because of the combination of protected characteristics. They will not need to show that they have been discriminated against on both individual grounds - it is their combined effect that will be important.
Employers now face having to defend a new type of claim and need to be all the more sure that decisions they make about employees are based on merit only.
There is no defence of justification for direct discrimination so, if employers are unable to show they did not discriminate on the combined grounds, claims will be upheld.
Employers must take even greater care to make sure decisions about staff are based solely on merit.