Catherine Casserley and Douglas Johnson provide a whistlestop tour of five decades of discrimination law in celebration of LAG's 50th.
While many areas of social welfare law have seen individuals’ rights severely curtailed over the past 50 years, discrimination law is an area that has widely expanded, due in large part to our membership of the EU and the provisions that came with that membership. Perhaps the exception was the field of disability rights, which was driven much more significantly by disability campaigners, leading to protections in domestic law.
This expansion of rights can be seen by a simple examination of the legislative provisions that have been put in place, and the breadth of ‘protected characteristics’ now covered by those provisions. Looking to the future, it is noticeable that the range of protected characteristics is a busy and developing area of law for the expansion of protections from discrimination. The recent case of
Forstater v CGD Europe and others UKEAT/0105/20/JOJ; July/August 2021
Legal Action 5 confirms that ‘gender-critical’ beliefs can be protected against discrimination and harassment under Equality Act 2010 s10.
Prior to 1975, however, the only provisions in place were those in the Race Relations Act (RRA) 1965. When introduced, this only covered discrimination in public places and there was no means of enforcement except through a complaint to the Race Relations Board. The RRA 1968 prohibited discrimination in public sector employment and housing but still made no provision for individual enforcement. It was only with the passage of the RRA 1976 that the Commission for Racial Equality was established and that individual cases could be brought by complainants to enforce their rights. Public functions – ie, the actions of the state and those acting on its behalf – were not included within the scope of the ‘services’ provisions. This led to a series of cases distinguishing between what was the provision of a service and what constituted the exercise of a function by a public authority – see, for example, Savjani v Inland Revenue Commissioners [1981] QB 458.
It was only following the death of Stephen Lawrence and the seminal
Macpherson Report (Cm 4262, Home Office, February 1999) that the Race Relations (Amendment) Act 2000 was passed to ensure that public functions were equally subject to anti-discrimination protection. Furthermore, those exercising public functions were also subject to the proactive duty to have due regard to the promotion of equality of opportunity, the prohibition of discrimination and the need to promote good relations.
The Equal Pay Act 1970 was, strictly speaking, the first discrimination provision relating to sex, but it was obviously singularly focused on the issue of pay. The Sex Discrimination Act 1975 introduced the first discrimination provisions across employment and the provision of services (excluding public functions, as with the RRA 1976). The Sex Discrimination (Gender Reassignment) Regulations 1999 SI No 1102, the Gender Recognition Act 2004 and the Sex Discrimination Act 1975 (Amendment) Regulations 2008 SI No 656 amended parts of this Act to apply to those who ‘intend to undergo, are undergoing or have undergone gender reassignment’. The Act was also amended to include public functions – but not for some time after the RRA 1976 had been.
Disability lagged behind, without any provisions to prevent discrimination against disabled people at all until a significant campaign, both political and by means of direct action, persuaded the government to rush through the Disability Discrimination Act 1995 to avoid more generous legislation being passed by means of a private member’s bill.
As a result of
Council Directive 2000/78/EC, anti-discrimination provisions for sexual orientation, religion and belief, and age were introduced. European provisions have been responsible for matters relating to the lifting of a cap on compensation and in respect of indirect discrimination findings, as well as the vitally important shifting of the burden of proof.
The Equality Act 2010 brought all the discrimination provisions together and strengthened them, introducing a single public sector equality duty and ensuring that discrimination was prohibited in public functions for all protected characteristics. It has led to significant amounts of litigation to enforce action against discrimination in the fields of employment, services to the public, education, public law and housing.
It is impossible in an article of this length to undertake any cogent analysis of the key cases that have shaped the discrimination landscape over the past 50 years. However, there are a few that stand out as being standard in the toolkit of the discrimination lawyer.
Igen Ltd and others v Wong [2005] EWCA Civ 142; May 2005
Legal Action 25, for example, is the key case on burden of proof, and judicial acknowledgment of the fact that:
… it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’ (
Barton v Investec Henderson Crosthwaite Securities Ltd EAT/18/03; November 2003
Legal Action 20 at para 25(3), quoted at para 14 of
Wong)
. Richmond Pharmacology v Dhaliwal UKEAT/0458/08; September 2009
Legal Action 25 stated that the approach to be taken to harassment claims should be broadly the same, regardless of the particular form of discrimination in issue, and that, in each context, ‘harassment’ is defined in a way that focuses on three elements:
(a)unwanted conduct;
(b)having the purpose or effect of either:
(i)violating the claimant's dignity; or
(ii)creating an adverse environment for them;
(c)on the prohibited grounds (ie, of sex, race, disability and so on).
And there are those decisions that, as well as setting out the legal tests involved, have also set out the social context in which discrimination arises and serve as a useful reminder (and learning tool) for others when reading them – cases such as
Bull and another v Hall and another [2013] UKSC 73, where Lady Hale stated:
Homosexuals … were long denied the possibility of fulfilling themselves through relationships with others. This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised. Homosexuals can enjoy the same freedom and the same relationships as any others. But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going on in many parts of the world. It is no doubt for that reason that Strasbourg requires ‘very weighty reasons’ to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion (para 53).
What is clear, though, is that the legislation is necessary – and claims are, if anything, on the increase. The need for the Equality Act 2010 remains and any attempt to dilute its provisions – whether through repeal of EU retained law or otherwise – should be resisted. If anything, it needs to be strengthened. And those enforcing it must continue – in argument and in judgment – to do it justice.
Only on 3 November 2022, there was an obituary in the
Times to Judge Percy Harris.
1The obituary is republished on the Middle Temple website. It states that in 1992, he caused national headlines by insisting that a Rastafarian man ‘remove his hat’ in court. The obituary continues:
Innocent of the fact that the colourful woollen headwear was an article of faith in the same way that it would be for a Sikh man, Harris was unsympathetic and unbending after he had been enlightened.
The sense of outrage was hardly assuaged by the fact that the man was the partner of a plaintiff who claimed that her son was being discriminated against by teachers at his school in Wandsworth, southwest London, on account of his colour – the first case to use the race relations law to contest the right of heads and governors to exclude pupils. Harris did not object to the plaintiff wearing headwear but ordered her partner, Patrick Abrahams, to remove his. After an adjournment, during which the Society of Black Lawyers applied to the lord chancellor to have Harris removed from the case, the judge backed down but not before adding (some thought ungraciously) that he had been ‘pushed into it’ and viewed the matter as ‘entirely trivial’.
‘I did not know that anyone was a Rastafarian, whatever a Rastafarian is,’ said Harris. ‘I find it difficult to understand why the man cannot take off his hat.’
Robin Allen KC, who was counsel for the plaintiff in that case, had submitted to HHJ Harris that he would apply for a non-suit, which would have enabled him to withdraw the case from his court and to start again. It was this submission (a hangover from earlier days, still possible then in the county court, but no longer) that appeared to persuade him to retire and think again.
This is an appalling example of discrimination in the courtroom. Yet it took place some 16 years after the passage of the RRA 1976. As Allen himself says, we now have an excellent
Equal treatment bench book and a Judicial Conduct Investigations Office. This should mean that nothing like this will happen again in a courtroom.
2But see page 15 of this issue. But 50 years have taught us that we must remain vigilant.
Thank you
LAG would like to offer its sincere thanks to both Catherine Casserley and Douglas Johnson, two loyal and long-standing contributors to both
Legal Action and LAG’s wider activities. Catherine has written articles on discrimination for
Legal Action for many years prior to taking over as co-author, with Douglas, of our regular ‘Discrimination: update’ articles in November 2015. She also co-edited LAG’s
Discrimination in employment: a claims handbook and has trained for LAG on human rights and discrimination issues. Douglas has also written a separate column for
Legal Action on topical discrimination issues since 2015. We should also thank Catherine Rayner, who previously wrote the regular discrimination update in the magazine from August 2008. John Horan has written a number of articles for us over recent years with a focus on disability discrimination. Many thanks are also due to our book authors in discrimination law over the years, some of whom can be seen on the covers above. Adam Straw KC wrote LAG’s wonderful 2022 book,
Discrimination in public law, with help from Oliver Persey. Sadly, we cannot thank individually the countless other authors and trainers who have helped spread knowledge of discrimination law through LAG’s books, articles and training over our long history but offer a collective thank you to all authors and trainers past, present and future!