Outside the Equality Act

Abstract

The ‘single’ Equality Act 2010 was intended to unify and simplify British discrimination law which had grown-up piecemeal over 40 years. However, a number of protections did not follow the standard model (as originally laid down in the Sex Discrimination Act 1975) and remained outside the unification process. Such grounds include trade union membership and the possession of whistle-blower status and past criminal records. This difference has been significant in the government’s reaction to the European Court of Human Rights’ decision in Redfearn v. UK regarding membership of political parties, where the government opted to expand these ‘other’ protections rather than amend the Equality Act 2010. This article considers the role and status of these other discriminations which remain outside the Equality Act 2010 in light of the government’s response to Redfearn.

Full text

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Outside the Equality Act: non-standard protection from
discrimination in British law
May 2015
Word Count: 8,098 (including notes and references)
James Hand
Associate Senior Lecturer
School of Law,
University of Portsmouth,
Richmond Building,
Portland Street,
Portsmouth
PO1 3DE
email: James.Hand@port.ac.uk
tel: 023 92 844818
Abstract
The ‘single’ Equality Act 2010 was intended to unify and simplify British
discrimination law which had grown up piecemeal over 40 years. However, a number
of protections did not follow the standard model (as originally laid down in the Sex
Discrimination Act 1975) and remained outside the unification process. Such grounds
include Trade Union membership and the possession of whistleblower status and past
criminal records. This difference has been significant in the government’s reaction to
the European Court of Human Rights’ decision in Redfearn v UK regarding
membership of political parties where the government opted to expand these ‘other’
protections rather than amend the Equality Act 2010. This article considers the role
and status of these other discriminations which remain outside the Equality Act 2010
in light of the government’s response to Redfearn.
Keywords
Equality Act 2010, Discrimination, Protected Characteristics, Trade Union
membership, Public Interest Disclosure, Rehabilitation of Offenders, Political
membership

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Outside the Equality Act: non-standard protection from discrimination in
British law
Introduction
There was, and is, no general equality principle within British anti-discrimination law.
Rather, as Fredman wrote in 2001, there was ‘a relatively sophisticated set of anti-
discrimination statutes [which] operates within a narrow area’ (2001: 149). Over the
years since then the set of statutes grew in number and scope and in 2008 the
government noted that there were ‘nine major pieces of discrimination legislation,
around 100 statutory instruments setting out connected rules and regulations and more
than 2,500 pages of guidance and statutory codes of practice’ (Government Equalities
Office, 2008: 6). In place of this myriad web, they proposed instead a single piece of
legislation, somewhat misleadingly described by some as the single equality act,
1
which in the words of the Long Title would ‘restate the greater part of the enactments
relating to discrimination and harassment related to certain personal characteristics’.
The restatement within the Equality Act 2010 was primarily intended to simplify, and
to varying extents, unify, harmonise and strengthen, the British anti-discrimination
statute book and related guidance.
2
While it has, indeed, unified much of the law and

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in doing so erased some of the apparently peculiar distinctions formerly within it
(discussed further below), there are other protections from discrimination which were
left untouched and these form the focus of this article.
The now-unified provisions generally previously provided protection in the same way
as each other building on the seminal model laid down in the Sex Discrimination Act
1975, although there were notable exceptions in the wording and scope of protection
(some of which continue). However, not all protection from detriment or less
favourable treatment, be it related to one’s characteristic, conduct, contract or
membership, followed the common model and these remained outside the unification
process.
3
This disparate treatment inevitably raises questions as to a hierarchy of
protections and the disparate way rights are designed and protected and, furthermore,
was of significance in the Government’s reaction in 2013 to the European Court of
Human Rights (ECtHR) judgment in Redfearn v United Kingdom.
4
It was held in
Redfearn that the UK was in breach of Article 11 ECHR as it had not taken reasonable
measures to protect employees from dismissal on grounds of political affiliation. One
response to the decision could have been an extension to the protected characteristics
within the Equality Act 2010 which could have opened the door to further

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incorporating some or all of the excluded protections into the Act. The other response
was to add to the list of protections outside of the single Act.
Having briefly set out the context of the protections provided by the Equality Act
2010, this article considers some of the significant non-Equality Act protections from
discrimination and the response of the Government to Redfearn. Consideration will
necessarily be limited to exploring the areas outside the standard model which relate
to the common theme of ‘what people are’ or ‘what they have done’ rather than the
economic circumstance of their contract (not least as, in contrast to the other areas, the
UK and EU protection regarding atypical workers such as part-time and agency staff,
to quote Fredman (2000: 195), ‘come[s] down firmly on the side of market regulation,
rather than individual rights’).
5
The Equality Act 2010
Previously, separate pieces of legislation covered the grounds of sex (incorporating
marriage and civil partnership, pregnancy and maternity and gender reassignment),

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race (including colour, nationality and ethnic and national origins), disability, religion
or belief (including non-belief), sexual orientation and age.
6
From the Sex
Discrimination Act 1975 through to the Employment Equality (Age) Regulations
2006, they followed a broadly standard model, albeit one which allowed for a host of
significant, and insignificant, differences and which evolved over time. The
legislation outlawed certain activities (either covering a wide range of fields e.g.
discrimination in employment, in the provision of goods and services, in housing, etc.
or just one or others of those)
7
having first defined discrimination using variants of a
standard formula.
8
The Equality Act 2010 has followed the format of the precursor legislation and ironed
out some (but not all) of the differences. Thus then and now, direct discrimination
refers to less favourable treatment on protected ‘grounds’ or ‘because of a protected
characteristic’ (while the words have changed to the latter, the meaning is explicitly
the same).
9
The Equality Act 2010 did, however, replace the former distinction
whereby sex and age direct discrimination had to be because of the claimant’s own
characteristic whereas race, religion and sexual orientation discrimination could be
because of another’s characteristic (i.e. discrimination by association).
10
Then and

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now, indirect discrimination is where there is a provision, criterion or practice applied
both to people who have and those who do not have that protected characteristic but
which causes a particular disadvantage to people with that characteristic (including
the claimant) unless the defendant can show that provision, etc. to be a proportionate
means of achieving a legitimate aim. The wording is arguably more formulaic now
but the meaning is again unchanged from that used in the later days of the old
discrimination legislation. Then and now, harassment appears as a separate wrongful
act and is defined in similar terms to when it was first introduced into the
discrimination statute book in 2003 (changes to wording being to simplify the
phrasing, remove redundancies and explicitly adopt the European ‘related to’
formulation in preference to ‘on grounds of’). Victimisation has, however, undergone
a more radical change in definition; it is now where someone is subjected to a
detriment because of their doing something under the act (such as bringing or helping
with proceedings or alleging a contravention) rather than where someone is treated
less favourably on similar grounds, thereby, some say, taking it outside the realm of
discrimination.
11
The Equality Act 2010 then goes on to render discrimination,
harassment and victimisation unlawful when undertaking particular activities, such as

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providing services and within employment, with sundry other provisions governing
enforcement, positive action/discrimination and other matters.
Not only does the format remain broadly the same, a number of distinctions between
the characteristics have also been copied over. Disability retains its unique identity,
having special provisions requiring reasonable adjustments and providing for
discrimination arising from a disability (which can be justified)
12
along with it being a
protected characteristic for direct and, now, indirect discrimination;
pregnancy/maternity also has some special provisions and is expressly excluded from
being a protected characteristic for indirect discrimination and for harassment and
potentially excluded from direct discrimination;
13
marriage/civil partnership, while
listed among the protected characteristics in section 4, is frequently excluded from
provisions;
14
and age remains the sole protected characteristic for which justification
is available to defeat a direct discrimination claim.
15
The former legislation, while
introducing harassment across much of the board (excluding marriage/civil
partnership and pregnancy/maternity), did not render religion or belief and sexual
orientation harassment unlawful per se with regard to the provision of goods and
services, the disposal and management of premises and school (but not further or

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higher) education. Those distinctions remain and so while there are nine protected
characteristics in section 4, there are only seven relevant protected characteristics
detailed within the definition of harassment and the prohibition of harassment in the
provision of services delists those two reducing the effective number there down to
five.
16
The prohibition on harassment constituting a detriment for the purposes of a
direct discrimination claim is however disapplied for such delisted characteristics and
so such claims may be brought as direct discrimination.
17
The rationale for treating
religion or belief in this way, that freedom of speech was threatened by the
prohibition, was accepted by the Joint Committee on Human Rights when considering
the Bill, however they concluded that sexual orientation, marriage/civil partnership
and pregnancy/maternity could and should have been included as relevant protected
characteristics so as to provide further protection and ‘eliminate confusing
distinctions’.
18
Such concerns about freedom of belief are also addressed to some
extent in the disapplication of the prohibition of direct discrimination where there is
an ‘occupational requirement’ to have a particular characteristic. This in general
allows, for example, male cloakroom attendants or black actors to be appointed if it is
necessary to have such a characteristic but there are two dedicated provisions
regarding where employers have an ethos based on religion or belief
19
and

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employment for the purposes of an organized religion (whereby an employer may
require a person to be of a particular sex, sexual orientation or marital state if certain
requirements are met).
20
While the aim to simplify and unify discrimination law was, in some ways, ambitious,
the government generally eschewed any major changes (such as making single-sex
clubs unlawful for fear of causing the legislation to be blocked; something which the
minister responsible appears now to regret).
21
The government thus opted to retain
the closed-list approach to discrimination, whereby characteristics are specifically
identified, rather than adopt an open-list approach, which allows for organic, judicial
expansion, as with the Canadian Charter of Rights and Freedoms and the European
Convention on Human Rights. While section 15(1) of the Canadian Charter lists
seven characteristics (equivalent to five of the UK characteristics – race, religion, sex,
age, disability – with national or ethnic origin and colour included there rather than in
an explanatory section) these are prefaced by ‘in particular’ and follow a general
statement that every individual has the right to equal protection and benefit.
Similarly, Article 14 ECHR prohibits discrimination in the enjoyment of human rights
on an itemised list of grounds but concludes with ‘or other status’. This open

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approach has meant that for both charters, to take two examples, sexual orientation
and marital status have received charter protection.
22
While such an approach can
allow for protection to be extended where considered judicious, it does carry with it
the risk of uncertainty and confusion which has been a hallmark of the European
Court’s inconsistent generosity in interpretation.
23
Not only did the government not seek to adopt an open-list approach, they did not take
the opportunity to expand the pre-existing list of characteristics, save perhaps for one
belated exception. The only arguable extension in terms of actual protected
characteristics (as opposed to their coverage) is the inclusion of the power to add caste
discrimination, inserted by the House of Lords during report stage, despite the
government’s initial belief that protection was already available within the Act by
other means, and with an order set to be laid in 2015 bringing it into effect. This,
however, will not make it the 10th protected characteristic but will add caste alongside
colour, nationality and ethnic or national origins as an aspect of race.
24
Not only were
the range of grounds within the Charter of Fundamental Rights of the European
Union, such as political opinion, language, genetic features and property, not brought
into UK law (in line with the UK having ‘opted out’),
25
existing protections from less

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favourable treatment because of such things as whistleblowing, past conviction and
trade union membership remained outside the unified Act.
Conduct – blowing the whistle and past misbehavior
The protection against detriment due to whistle-blowing or past misbehavior could be
said not to relate to inherent characteristics of the person (such as their sex, race,
orientation, age, etc.) but instead relate to something they have done (in one case
creditable and the other discreditable but historic).
Protection for ‘whistle-blowers’ was brought in by the Public Interest Disclosure Act
1998 (PIDA 1998). The protection operates through the Employment Rights Act
1996, with the 1998 Act inserting definitions as to what is a protected disclosure, in
terms of what the worker must reasonably believe to qualify for protection and to
whom it is made, and rights regarding not suffering a detriment and unfair dismissal.
The worker must reasonably believe that the disclosure would show that a criminal
offence has been or is likely to be committed, that a person has failed or is likely to
fail to comply with a legal obligation, that a miscarriage of justice has occurred or is

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likely to occur, that the health and safety of a person has been or is likely to be
endangered, that the environment is or is likely to be endangered or that information
about any of the foregoing is being or is likely to be concealed, in all cases unless an
offence is committed by making it or doing so breaches legal professional privilege.
26
Such disclosures must also be in the public interest. The Act then, through inserting
sections 43C to 43H, states to whom the disclosure may be made (e.g. to an employer
or employer authorised third-party, a legal adviser without condition; a government
body or regulator if it is in respect of their functions and the allegations are
substantially true; or to any other appropriate person if a range of conditions are met
including not making personal gain, it being reasonable in the circumstances and the
worker reasonably believed either that he or she would be victimised if he or she
made the report internally or to a regulator or that evidence would be hidden if he or
she did so or that he or she had already so reported to either or both). Such
disclosures join the protection from detriment serially afforded to such other areas as
undertaking jury service, asserting rights under the Working Time Regulations 1998,
acting as health and safety representative, employee representative, trustee of pension
scheme, asking for flexible working and, most recently, refusing to accept an offer to
become an employee shareholder.
27
On complaining to an Employment Tribunal the

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worker or employee (depending on the right in question) may be compensated for any
loss suffered. Furthermore, protected disclosures join the list of automatically unfair
dismissals
28
where the usual qualifying period for unfair dismissal does not apply
29
and the somewhat shorter list where the statutory cap on compensation (at time of
writing the lower of £78,355 or 52 multiplied by a week’s pay of the complainant) is
dissapplied.
30
There has been some criticism of the Act and its working. The charity Public Concern
at Work organised an independent commission to review whistleblowing which
reported in November 2013.
31
While PIDA 1998 was described as ‘indispensible’,
concern was expressed that it was a retrospective protection and this only indirectly
supports whistleblowing.
32
A pro-active system of encouragement and reporting
requirements along with clear government advice and simplification of the law are
among the recommendations.
33
Lewis has proposed system of mediation to allow
for more effective resolution to whistleblowing disputes.
34
The government have
already acted to amend the law inserting a public interest requirement (as some were
citing breaches of their employment contract as a failure to comply with a legal
obligation and thus benefit from the disapplication of the qualifying period and cap on

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damage)
35
and vicarious liability for victimisation (bringing it into line with
discrimination legislation)
36
while removing the former requirement that all
disclosures had to be made in good faith to balance the additional public interest
requirement (with absence of good faith now sounding in damages instead).
37
There
are also plans for further reform pending consultation. While the EAT in Fecitt v
NHS Manchester
38
elided PIDA with ‘other discrimination’,
39
it can be seen that it is
quite different in concept.
Past misbehavior
Some jurisdictions include past convictions within aspects of their standard anti-
discrimination laws. For example, the Newfoundland and Labrador Human Rights
Act 2010, in its provision prohibiting discrimination in employment, refers to
‘prohibited ground[s] of discrimination’ and then adds ‘or because of the conviction
for an offence that is unrelated to the employment of the person’.
40
The protection
does not extend outside the employment-related field hence its non-inclusion within
the ‘prohibited grounds’. Similar laws apply in British Columbia.
41
In Australia, one
State and one Territory include ‘irrelevant criminal record’ (i.e. spent, uncharged,

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unconvicted, quashed, pardoned or where the circumstances are not directly relevant
to the situation in which the discrimination arises) among the protected attributes
across a range of protected activities (with some specific exceptions),
42
a further State
and Territory prohibit discrimination on the basis of spent convictions (i.e.
convictions of a suitably short duration after a period of time), in one case through
including it as protected attribute and in the other through statutory reading in,
43
and
the federal Human Rights and Equal Opportunity Commission Regulations 1989
includes criminal record among grounds of discrimination (but in that case the remedy
if voluntary settlement fails is a report by the commission to the minister). UK law,
through the Rehabilitation of Offenders Act 1974, prohibits discrimination regarding
spent convictions through holding in section 4(3)(b) that a spent conviction
44
or
failure to disclose a spent conviction or any ancillary circumstances ‘shall not be a
proper ground for dismissing or excluding a person from any office, profession,
occupation or employment, or for prejudicing him in any way in any occupation or
employment’. While this seems straight-forward, the Act does not explicitly state
what the consequences of contravening this provision are. Pitt-Payne QC, in a 2011
policy paper, considered that the remedy for such a breach, particularly as regards not
appointing someone, was unclear. While a public authority could be subject to

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judicial review, he mooted breach of statutory duty as a possibility for a private sector
employer but noted that despite being in force for nearly 40 years ‘there appears to be
no case-law addressing these questions [which] itself calls into question the
effectiveness of the legislation: it suggests that in practice little use of the legislation
has been made in order to challenge refusals to employ’.
45
There is, indeed, little case
law even on where people have been dismissed but there the remedy seems to be that
a dismissal cannot fall under the fair reasons for dismissal (as today contained in the
section 98(2) and (1)(b) of the Employment Rights Act 1996) if section 4(3)(b) of the
Rehabilitation of Offenders Act 1974 applies.
46
This dichotomy between ‘in
employment’ discrimination and discrimination against applicants emerges again with
regard to ‘membership’ discrimination (below). In his conclusion Pitt-Payne suggests
that the 1974 Act should be replaced and that an approach based on discrimination
law should be adopted.
47
This would provide greater and clearer protection and it
could easily be added as an additional protected characteristic but employers would
still need to be aware of the other elements currently covered by the 1974 Act such as
the definition of spent convictions and the consequences of unauthorised disclosure of
them.
48

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Membership – not a defining characteristic?
There is a clear difference between inherent personal characteristics such as one’s sex,
race or disability and membership of a trade union or political party or group.
Arguably, the line is less clear with regard to religion or belief (where, for example,
belief in the urgent necessity to act to mitigate climate change and to prevent fox-
hunting have been held to be protected beliefs).
49
Nonetheless, the ECHR list of
protected grounds expressly includes ‘political or other opinion’
50
as does the EU’s
Charter of Fundamental Rights.
51
Jurisdictions such as Tasmania and the Northern
Territory in Australia do likewise and further specify ‘industrial activity’ or ‘trade
union or employer association activity’ as protected attributes.
52
British law,
however, affords protection to members of trades unions, and following the 2012
ECHR decision in Redfearn v UK
53
political parties, through other means.
Freedom of association is a fundamental right, with Article 11 ECHR stating that
‘[e]veryone has the right… to form and join trade unions for the protection of his
interests’. In British law, section 137 of the Trade Union and Labour Relations
(Consolidation) Act 1992 states quite clearly that ‘It is unlawful to refuse a person

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employment– (1)(a) because he is or is not a member of a trade union...’ and provides
for a claim to the Employment Tribunal. Later sections go on to prohibit dismissal
and action short of dismissal on trade union grounds.
54
There is, however, a stark
difference between these provisions as written: unlike section 137 they expressly refer
to ‘trade union membership or activities’ and contain particular paragraphs concerning
taking part in trade union activities, and making use of their services, at an appropriate
time.
55
A literal interpretation of these provisions would thus suggest that there is no
protection for an applicant who is refused employment because of his or her past or
probable future trade union activities whereas once in employment he or she would be
so protected. A further difference can be discerned as to on whom the burden of proof
lies. As regards applicants, section 137 is silent and so the burden lies with the
claimant. Section 152 provides a remedy for dismissal via the unfair dismissal
mechanism, amending it to remove the requirement of qualifying service and
providing for special compensation, and so the burden is as provided for under unfair
dismissal (that it is the employer who has to show the reason for the dismissal). The
provisions dealing with detriment short of dismissal (sections 146-151) include the

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express provision that ‘[o]n a complaint under section 146 it shall be for the employer
to show what was the sole or main purpose for which he acted or failed to act’.
56
This
disparity is more marked when comparing section 137 with regulation 5 of the
Employment Relations Act 1999 (Blacklists) Regulations 2010.
57
These regulations
seek to protect people from the use of prohibited lists (comprising details of trade
union members or those who have taken part in union activities) and any detriment,
dismissal or refusal of employment that is related to such lists. Regulation 5 provides
for similar protection as in section 137 but includes an Equality Act-like burden of
proof provision under which the burden shifts to the prospective employer once facts
have been shown from which the tribunal could conclude, in the absence of any other
explanation, that there had been a contravention.
58
However, the law regarding the
difference between membership and activities can be said to be unsettled following
national and European judicial intervention.
The Employment Appeal Tribunal has held that, notwithstanding the statutory
wording or lack of it, ‘a divorce of the fact of membership and the incidents of
membership is illusory… [p]articipation in the activities of a union is one of the ways
in which membership of a union is manifested’,
59
although having said that while they

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overlap they are not necessarily co-extensive and it is a matter of fact in each case as
to whether the reason related to membership. A case before a differently constituted
EAT, looking at predecessor legislation, had previously drawn a distinction between
membership and the ‘fruits of membership’.
60
The Court of Appeal reversed this
decision and was itself reversed by the House of Lords who drew a distinction
between deterring or penalising membership and deterring the use of some of the
union’s services.
61
To quote Lord Bridge:
a general proposition of law that, ... membership of a union is to be equated
with using the "essential" services of that union, at best it puts an unnecessary
and imprecise gloss on the statutory language, at worst it is liable to distort the
meaning of these provisions which protect union membership as such.
62
This in turn led to a complaint to the ECtHR which, in 2002, held that in not
outlawing financial incentives to the surrendering of union rights, the UK was in
violation of Article 11 ECHR.
63
More recently, in 2013, the EAT in Miller v
Interserve Industrial Services Ltd
64
held that on the facts of that case an employer,
who steadfastly refused to appoint certain former union stewards despite having been

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placed under unacceptable pressure to do so, had acted solely in a negative response
to that pressure rather than because of their membership or activities. As the
Blacklist Regulations were also in play and they cover activities and membership, the
EAT were not addressed on the question of whether section 137 extended to activities,
on which Underhill J noted there was a good deal of law.
65
However, he does refer to
‘activities’ rather than membership in his conclusion.
66
The reference to manifestation of union membership echoes the situation with regard
to religion or belief. While the right to have a religion is absolute under Article 9(1)
ECHR, the freedom to manifest it is conditional under Article 9(2) as it may have an
impact on others.
67
As there is no distinction between direct and indirect
discrimination in the ECHR one may think that in national law holding a belief falls
into the direct category whereas questions of manifestation would lead to an indirect
claim. Manifestation is certainly covered, a contention fortified following the case of
Eweida v UK (2013),
68
but as the EHRC Code of Practice on Employment (2011)
makes plain it ‘would usually amount to indirect discrimination’, and thus may
sometimes amount to direct discrimination.
69
Indeed, there are numerous cases where
direct discrimination has been claimed in the alternative and the EAT in Grace v

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Places for Children
70
appears to contend that had Mrs Eweida brought her claim
today (rather than in 2007) she would have succeeded in direct discrimination.
71
If
brought as indirect discrimination, then the practice could be justified (as would be the
case on health and safety grounds where a nurse refused to remove a crucifix),
72
but if
brought as direct discrimination such balancing of considerations are not available;
however it would be open to a tribunal to hold that inappropriate manifestation of the
belief is not protected as then it is neither the holding nor ability to manifest it that is
the reason but the way in which it was manifested (as was the case in Grace).
73
It is
among this background, that the response to the ECHR’s 2012 decision in the political
membership case of Redfearn v United Kingdom
74
was made.
Membership and Redfearn
Redfearn concerned the dismissal of a minibus driver for the disabled following his
election as a local councillor for the British National Party (which was then a whites-
only party committed to reversing non-white immigration). Mr Redfearn’s
employers, Serco, cited health and safety concerns. A large proportion of the disabled
clientele were of Asian origin, as were a substantial number of his colleagues. The

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safety concerns were threefold: fear of violence by other employees, fear of the
anxiety caused by the reaction of his ‘patients’, and the more general annoyance or
anger which Serco or Mr Redfearn may face by virtue of his publicised membership
of the BNP.
75
They were also concerned that their reputation and the possibility of
retaining contracts with public sector clients would be threatened.
76
Mr Redfearn had
not worked long enough to be able to claim unfair dismissal, so brought a race
discrimination claim instead. The tribunal, in February 2005, dismissed both the
direct and indirect claim, holding that the wide definition of direct discrimination
encompassing associative discrimination did not stretch so far as to cover him and that
any indirect discrimination was justified. The EAT, in July 2005, reversed the
tribunal on both points, holding that the authority which allowed associative
discrimination bound the tribunals in this very different case and that justification had
not been sufficiently considered. The Court of Appeal in turn reversed the EAT (in
May 2006), holding that such an interpretation of direct discrimination was
‘incompatible with the purpose’ of the legislation, as it would mean someone
dismissed for racial abuse would also be able to say the dismissal was on grounds of
race,
77
and that while the consideration of justification for indirect dismissal lacked
detailed scrutiny it did not matter as the claimant had not shown a provision, criterion

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or practice and so the claim should not have been considered in the first place.
78
Mr
Redfearn subsequently (in November 2006) complained to the ECtHR which, in its
November 2012 judgment in Redfearn v UK, found by a 4:3 majority that his Article
11 right to freedom of association had been violated as the UK had not taken
reasonable measures to protect employees from dismissal on grounds of political
affiliation.
79
This could be remedied either by adding political affiliation to the list of
dismissals which do not need to meet the qualifying period for unfair dismissal [50] or
through a claim for unlawful discrimination on grounds of political opinion or
affiliation. Presented with this choice, the government opted for the former and
inserted section 108(4) into the Employment Rights Act 1996 with effect from June
25, 2013. Significantly, unlike the other dismissals which do not require the
qualifying period, dismissal for political opinion or affiliation is not automatically
unfair, nor (unlike some) is compensation unlimited.
80
If such a situation happened
today, Mr Redfearn could potentially still have been fairly dismissed but he would at
least have had the chance to argue his case in the tribunal. If the government had
gone down the other route, it could have further opened up the holding/manifesting
debate and employers would have lost the defences available to them under unfair
dismissal. However, as political ideology (if it is worthy of respect in a democratic

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society and is compatible with human dignity), as opposed to membership, is already
protected under belief within the Equality Act 2010,
81
it does open some divergence
of protection.
Conclusion
The different treatment of the various rights discussed above can be seen, at least in
some cases, as being due to the underlying intent behind them or their being part of a
wider mechanism (such as the Rehabilitation of Offenders Act 1974). Nonetheless,
other jurisdictions, albeit to varying extents, embrace these wider areas within
mainstream anti-discrimination law and courts and tribunals within Britain and
Europe can be seen to elide principles notwithstanding the original intent.
Furthermore, there is if not a hierarchy of rights then certainly, still, a disparateness of
protections within the Equality Act 2010
82
and so different mechanisms or aims need
not necessarily preclude incorporation within the Act.
It was open recently to the government, following the decision of the ECtHR in
Redfearn, to have made political membership a protected characteristic within the

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Equality Act 2010. However, as the definition of direct discrimination generally
allows for no justifications (outside of occupational requirements), this would have
allowed members of any political party – however objectionable – to be protected.
83
The impolitic implications of this would, it is contended, have most likely led to the
political opinion characteristic joining age as a protected characteristic for which
justification of direct discrimination could be available. This in turn could have led to
the seemingly inherent conflict between religion and belief and sexuality – already
marked in the exclusion of them from some of the harassment provisions – being
resoluble thorough those two characteristics joining the list of characteristics where
direct discrimination could be justified.
84
In such circumstances, and even if it
stopped short of going that far, there would be a stronger case to bring trade union
membership and past criminal offences into the fold as is the case in other
jurisdictions.
As things stand, however, with the government having opted to amend the protection
available through the unfair dismissal legislation, there is an enhanced critical mass of
non-Equality Act 2010 ‘discriminations’. This disparate treatment does not mean
these are necessarily lesser protections (although the absence of any enforcement

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process under the RoOA 1974 may reflect either a moral ambivalence to the matter or
a legislative slip). These other pieces of legislation along with the protection afforded
to atypical workers, currently, can continue to stand on their own and show that
equality – or non-discrimination – law in Britain is not simply that contained within
the Equality Act 2010. The question may not be closed, however, as freedom of
association extends beyond the narrow confines of ‘employment’ as defined for unfair
dismissal purposes and those seeking the provision of goods and services and even
those who are in quasi-employment situations remain unprotected. The means of
protection, and the number and nature of the protected characteristics within the
Equality Act 2010, may thus yet be revisited.
Acknowledgments
I should like to thank Barry Hough, Panos Kapotas and the anonymous referee for
their valuable comments and Andy Thorpe and Judy Rich for inspiring the piece (via
her University of Portsmouth project: Do employers discriminate against trade union
members? An experimental study). Any errors are my own.
Funding

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This research received no specific grant from any funding agency in the public, commercial,
or not-for-profit sectors.
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Notes
1
See, for example, the green paper (Department for Communities and Local Government, 2007) and
Hepple, 2010. Furthermore, the number of statutory instruments relating to the Equality Act 2010
(including commencement orders and amendments) is already nearing 40.
2
Baroness Warsi, for example, described ‘the main thrust and purpose of the Bill’ as ‘simplification
and consolidation’ (Hansard HL, vol 715, col 1411, 15 Dec 2009). See further, e.g., Hepple, 2011;
Hand , Davis & Feast, 2012.
3
Unification is preferred as consolidation suggests an absence of substantive changes (see e.g.
lawcommission.justice.gov.uk/areas/consolidation.htm).
4
[2012] ECHR 1878, [57].

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5
Cp. Bell, 2012.
6
Sex Discrimination Act 1975 (SDA 1975), Equal Pay Act 1970, Race Relations Act 1976 (RRA
1976), Disability Discrimination Act 1995 (DDA 1995), Employment Equality (Religion or Belief)
Regulations 2003 (RB Regs 2003), SI 2003/1660 (and Equality Act 2006 which, inter alia, extended
coverage of Religion or Belief to the provision of goods and services, etc), Employment Equality
(Sexual Orientation) Regulations 2003 (SO Regs 2003), SI 2003/1661 (and Equality Act 2006 (Sexual
Orientation) Regulations 2007, SI 2007/1263 which similarly extended the coverage of Sexual
Orientation to provision of goods and services, etc), Employment Equality (Age) Regulations 2006
(Age Regs 2006), SI 2006/1031.
7
e.g. the SDA 1975 and the RRA 1976 covered a range of protected activities whereas the RB Regs
2003 and other Employment Equality Regulations covered the wider-Employment area only.
8
The DDA 1995 is to quite an extent a different piece of legislation, much amended and with specific
and unique provisions, but has some broad similarity with the standard model.
9
Explanatory Notes to the Equality Act 2010 para 61.
10
e.g. Weathersfield Ltd (t/a Van & Truck Rentals) v Sargent [1999] ICR 425 (where a white woman
could claim race discrimination because of an instruction relating to her customers’ race). For the
expansion of associative discrimination to disability, in the face of the wording of the Disability
Discrimination Act 1995, see EBR Attridge Law LLP (formerly Attridge Law) v Coleman [2010] ICR
242.
11
The Explanatory Notes to the Equality Act 2010 state that it is ‘technically no longer treated as a form
of discrimination’ but ignores the effect of Chief Constable of West Yorkshire Police v Khan [2001] 4
All ER 834 when stating ‘there is no longer a need to compare treatment...with that of a person who has
not made or supported a complaint under the Act’ (note 103) (Connolly expressed surprise back in
2002 that the definition of the comparator as excluding those ‘who had the temerity to sue [the
employer] for anything’ (non discrimination-related) – to quote Lord Scott at [72] – was still an issue to
be put before their lordships: Connolly, 2002: 163-164. Middlemiss, 2013 takes a different view and
treats the broad less favourable approach as, in effect, remaining).
12
Equality Act 2010, ss.20-21 and 15 respectively.
13
Equality Act 2010, ss.17-18 and s.19(3). Section 25 purports to summarise references to particular
strands of discrimination and for pregnancy/maternity only lists s.17 and 18 whereas s.13 is mentioned
for all the others.

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14
See, e.g., Hand, 2012.
15
Equality Act 2010, s.13(2).
16
And even lower for premises as that part does not apply to age (s 32(1)(a)) and lower still for schools
as that chapter does not apply to age (s 84(a)) and the prohibition of harassment within it further delists
gender reassignment (s 85(10)(a)).
17
Equality Act 2010, s.212(5).
18
Human Rights Joint Committee Twenty-Sixth Report. Legislative Scrutiny: Equality Bill (2008-09)
paras 108 – 114.
19
Equality Act 2010, Schedule 9, para 3.
20
Viz. so as to comply with the doctrines of that religion or so as to avoid conflicting with the strongly
held religious convictions of a significant number of the religion's followers (Equality Act 2010,
Schedule 9, para 2).
21
Harriet Harman described the Act as ‘incomplete’ and ‘unfinished business’ in an interview on the
BBC News Channel, stating that if ‘you know it is anachronistic, out of date and it discriminates
against women, you can actually amend the Equality Act to make sure that does not happen and we will
give that backing’ Harman urges ban on all-male clubs in Muirfield row
http://www.bbc.co.uk/news/uk-politics-23355533. Para 12.12 of the The Equality Bill – Government
Response to the Consultation (Cm 7454) (2008), however, made plain that single-sex clubs along with
other single-characteristic clubs would remain lawful and that 90% of respondents agreed with that,
recognising that is ‘important for groups of people to have their own space’ although such clubs should
be for a positive, supportive benefit rather than for the purposes of segregation.
22
Egan v Canada, 1995 CanLII 98 (S.C.C.), [1995] 2 SCR 513 and Salguero da Silva Mouta v
Portugal (2001) 31 EHRR 1055 (sexual orientation); Miron v Trudel [1995] 2 SCR 418 and In re P
[2008] UKHL 38.
23
As discussed by O’Connell (2009), the wide interpretation has seen the Court hold that a distinction
based on former membership of the security services fell within Article 14 (Rainys and Gasparavicius
v Lithuania (App Nos 706651/01 and 74345/01, 7 April 2005 and & 7 July 2005)) as did membership
of the Freemasons (Grande Oriente d’Italia di Palazzo Giustiniani v Italy (App No 26740/02, 31 May
2007) among other things. However, this is by no means consistent and, to take one example, the Court
has recently held that difference in treatment based on the nature and duration of an employment

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contract was not sufficiently related to personal choices (e.g. religion, sexual orientation) or inherent
personal traits (e.g. sex and race) and thus did not fall within Article 14 (Peterka v Czech Republic
(App. No. 21990/08, 4 May 2010). See further Gerards, 2013.
24
Equality Act 2010, s 9(5). For the agreement of the amendment inserting the power see Hansard
HL, vol 717, col 1345 – 1350, 2 Mar 2010 (as previously suggested re sub category by Mark Harper
Hansard Equality Bill Deb 11 June 2009, col 178). There is first instance authority that caste falls
within race in any case (Tirkey v Chandok and another (ET/3400174/2013); cp. Naveed v Aslam
(ET/1603968/11)).
25
The charter was originally reported at 2000/C 364/01 and has been restated at 2010/C 83/02 (the
relevant article being Art 21 in both cases) as part of the consolidated versions of the Treaty on
European Union and the Treaty on the Functioning of the European Union. The UK ‘opt out’ is in
Protocol (No 30) to the TFEU. On the effect of the charter and the UK ‘opt out’ see Beal and
Hickman, 2011 and Anderson & Murphy, 2008. With regard to the equality provisions there is
equivalence to Art 14 ECHR, reducing the effect of any opt out.
26
Employment Rights Act 1996, s.43B (as inserted by Public Interest Disclosure Act 1998, s.1).
27
Employment Rights Act 1996, ss.43M – 47G.
28
Employment Rights Act 1996, ss.98B – 107 (protected disclosures are at s.103A).
29
Employment Rights Act 1996, s.108(3)(ff).
30
Employment Rights Act 1996, s.124(1A). The others being health and safety cases (s.100) and
redundancy connected to health and safety or protected disclosure (s.105(3),(6A)).
31
Public Concern at Work, 2013.
32
Ibid, para 7.
33
Ibid, p.26.
34
Lewis, 2013.
35
Following Parkins v Sodesho Limited [2002] IRLR 109, EAT; see also e.g. Millbank Finacial
Services Ltd v Crawford [2014] IRLR 18, [31].
36
Following the CA in Fecitt v NHS Manchester [2012] ICR 372 reversing the EAT on this point.

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37
Via Enterprise and Regulatory Reform Act 2013, ss.17-19.
38
[2011] ICR 476.
39
Ibid, [47], [64]. The CA upheld the earlier instances regarding the similarity to discrimination
regarding causation.
40
Human Rights Act 2010 (Newfoundland and Labrador), s.14(1).
41
Human Rights Code [RSBC 1996], s.13(1).
42
Anti-Discrimination Act (Northern Territory), s.19(1)(q), Anti-Discrimination Act 1998 (Tasmania),
s.16(q); for exception see e.g. Anti-Discrimination Act 1998 (Tasmania), s.50.
43
Discrimination Act 1991 (ACT), s.7(1)(o) and Spent Convictions Act 1988 (WA), s29 providing the
Commissioner and Minister with power to act as if such discrimination were a form of discrimination
under the Equal Opportunity Act 1984 (WA), respectively.
44
A conviction may become spent after a period of time (depending on the seriousness of the crime).
English and Welsh Law, following a change to the law on 10 March 2014, allows convictions of over
30 and up to 48 months to be spent after seven years following the completion of the sentence
(Rehabilitation of Offenders Act 1974, s.5(2) (as amended by Legal Aid, Sentencing and Punishment of
Offenders Act 2012, s.139)).
45
Pitt-Payne, 2011: 11; there is however a criminal penalty (a fine not exceeding the statutory
maximum) for requiring disclosure of past offences if not required by law and not in the public interest
(see Data Protection Act 1998, ss.56 and 60).
46
Hendry v Scottish Liberal Club [1977] IRLR 5, ET (where incompetence, lack of attention to duties,
lack of control of staff and unauthorised and unexplained absence were tainted as reasons when the
panel took into account a spent cannabis offence and failing that then it was not reasonable to dismiss
on the stated grounds); Property Guards Ltd v Taylor & Kershaw [1982] IRLR 175 (concerning
security guards with spent convictions unfairly dismissed notwithstanding the nature of the business).
47
Pitt-Payne, 2011: 25. Mujuzi and Tsweledi, 2014 suggest a discrimination approach should also be
adopted in South Africa.
48
ie a fine not exceeding level 4 (or level 5 depending on the circumstances) on the standard scale,
Rehabilitation of Offenders Act 1974, ss.9(6), 9(7).

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49
Grainger v Nicholson [2010] ICR 360 and Hashman v Milton Park (Dorset) Ltd (t/a Orchard Park)
ET/3105555/09 respectively. With regard to sexual orientation, while many would view orientation as
not being a choice, the ECHR described it, as well as religion, as being so in Peterka v Czech Republic
(App No 21990/08, 4 May 2010) (‘il peut s’agir des raisons tenant à des choix personnels reflétant des
traits de la personalité de chacun, comme la religion, les opinions politiques, l’orientation sexuelle…’);
see also Cadek v Czech Republic [2012] ECHR 1962, [94].
50
Article 14 and Article 1 of Protocol No. 12 (the latter not signed or ratified by the UK).
51
Article 21.
52
Anti-discrimination Act 1998 (Tas), s.16(l)&(m); Anti-discrimination Act (NT), s.19(1)(k)&(m).
53
[2012] ECHR 1878.
54
Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992), s.152 and s.146.
55
e.g. TULR(C)A 1992, s.146(1)(b) and (ba).
56
TULR(C)A 1992, s.148(1).
57
SI 2010/493.
58
Reg. 5 of the Employment Relations Act 1999 (Blacklists) Regulations 2010, SI 2010/493; using
similar terminology to Equality Act 2010, s.136(2),(3).
59
Harrison v Kent CC [1995] ICR 434, 443.
60
Associated Newspapers v Wilson [1992] ICR 681, 695 and 697.
61
Associated Newspapers v Wilson [1995] 2 AC 454, e.g. 484 – 487 (Lord Lloyd).
62
Ibid, 478.
63
Wilson v United Kingdom (2002) 35 EHRR 20, [47]-[48].
64
[2013] ICR 445.
65
Ibid, footnote 5.
66
Ibid, [20].

This is the Accepted Version (post peer-review) of an article in the International Journal of
Discrimination and the Law, published online before print July 2, 2015. The definitive version
can be accessed via the DOI 10.1177/1358229115593829 and at time of publication
jdi.sagepub.com/content/early/2015/07/02/1358229115593829.abstract
67
Eweida and ors v United Kingdom [2013] ECHR 37, [80].
68
Eweida and ors v United Kingdom [2013] ECHR 37.
69
Para 2.61.
70
[2013] UKEAT 0217_13_0511.
71
It is not clear whether this a typographical error. The judgment refers to section 13 and 21(3) of the
2010 Act and the latter section is clearly mistaken as that relates to adjustments relating to disability
[6]. It also refers to s.15(4) of the Equality Act 2010 rather than 2006 Act when considering the
statutory backing to the Code of Practice [5]. Nonetheless claims for both direct and indirect include:
the four cases within Eweida (Eweida, Ladele, Chaplin and McFarlane), Bull v Hall [2013] UKSC 73,
Azmi v Kirklees MBC [2007] IRLR 484, Black v Wilkinson [2013] 1 WLR 2490. In Drew v Wallsall
NHS Trust [2013] UKEAT 0378_12_2009 the direct claim was solely (and unsuccessfully) pursued.
72
Chaplin within Eweida and ors v United Kingdom [2013] ECHR 37, [99]-[100].
73
See also Lord Bingham in R (Begum) v Headteacher and Governors of Denbigh High School [2006]
UKHL 15, [23].
74
[2012] ECHR 1878.
75
Redfearn v Serco Ltd [2005] IRLR 744, [10].
76
Ibid, [7].
77
[2006] ICR 1367, [43], [46].
78
Ibid, [50]-[57].
79
Redfearn v UK [2012] ECHR 1878, [57].
80
Collins and Mantouvalou (2013: 921-922) consider that simply applying unfair dismissal damages
without allowing compensation for injury to feelings or affront to dignity could be incompatible with
the ECHR.
81
Grainger v Nicholson [2010] ICR 360, [28] (where Marxism, Communism and Capitalism were
considered to be capable of meeting the definition whereas membership of connected parties would

This is the Accepted Version (post peer-review) of an article in the International Journal of
Discrimination and the Law, published online before print July 2, 2015. The definitive version
can be accessed via the DOI 10.1177/1358229115593829 and at time of publication
jdi.sagepub.com/content/early/2015/07/02/1358229115593829.abstract
not). This is fortified by the ECtHR’s observation in Redfearn that Art. 11 extends to those whose
views ‘offend, shock or disturb’ [56].
82
with various characteristics being de-listed from various protections and some such as pregnancy and
maternity, disability and equal pay between the sexes being subject to individual and sometimes quite
detailed treatment (see e.g. Equality Act 2010, ss. 17, 18 (pregnancy), 26(5), 29(8), 32(1), 33(6)
(limitation re definition of harassment and some connected prohibitions), Part V, Chapter 3 (Equality of
Terms i.e. pay between the sexes/pregnancy)). For consideration of whether there is a hierarchy see
e.g. Gibson, 2013: 588; McColgan, 2007: 74; Havelková, 2014: 211.
83
Such a conclusion is fortified by the ECtHR’s observation in Redfearn that Art. 11 extends to those
whose views ‘offend, shock or disturb’ [56].
84
See, for example, the related discussion (regarding sex discrimination rather religion) in Bowers and
Moran, 2002, Gill and Monaghan, 2003 and Bowers, Moran and Honeyball, 2003 (a dialogue which
predates the days of religion or belief discrimination), McColgan, 2009 and Pitt, 2011. The minimum
coverage of religion or belief and sexual orientation is dictated by EU law, unlike political membership,
but that is not an insurmountable obstacle and reform could take place at EU level given the conflict of
rights.