382 Chapter 14Employment (2): Discrimination and health and safety
In this case, when considering the meaning of ethnic group, the House of Lords held that
two characteristics were essential and another five characteristics would commonly be found.
The two essential characteristics of ethnic groups are:
(1) that the group has a long shared history of which it is conscious as distinguishing it
from other groups and the memory of which it keeps alive; and
(2) that the group has a cultural tradition of its own, including family and social customs
and manners, which is often but not necessarily associated with religious observance.
The five non-essential characteristics are:
(a) common origin from one geographical area or descent from a small number of ancestors;
(b) a common language, even though others might speak it;
(c) a common literature which is peculiar to the group;
(d) a common religion which is different from that of neighbouring groups or that of the
general surrounding community;
(e) being a minority or being an oppressed or dominant group within a larger community.
The protected characteristic of religionapplies to any religion as well as to a lack of
religion. The protected characteristic of belief applies to any religious or philosophical
belief, including a lack of belief.
References to theprotected characteristic of sexare references to being either a man or
a woman.
The protected characteristic of sexual orientationis defined as a sexual orientation
towards persons of the same sex, persons of the opposite sex or persons of either sex.Direct discrimination
Direct discrimination, indirect discrimination, harassment and victimisation all amount to
prohibited conduct. Each of these needs to be considered in turn.
Section 13(1) sets out the meaning of direct discrimination. It says that a person (A)
discriminates against another (B) if, because of a protected characteristic, A treats B less
favourably that A treats or would treat others. So it would be direct discrimination, for
example, to refuse to employ a person either because he was a Hindu, or because he
associated with Hindus or because he was wrongly thought to be a Hindu. It makes no
difference that A has the same characteristic. So a woman can be liable for discriminating
against another woman. Section 13 then goes on to make five specific rules which relate to
direct discrimination on five of the protected characteristics.
Section 13(2) states that if the protected characteristic is age, A does not discriminate
against B if A can show A’s treatment of B to be a proportionate means of achieving a
legitimate aim.Mandla vDowell Lee (1983) (House of Lords)A school refused to admit a Sikh boy because he would not cut his hair and stop wearing
a turban. The trial judge held that no claim could be brought under the Act because Sikhs
are not a racial group.
HeldSikhs are a racial group defined by ethnic origins. So the boy succeeded in his claim
that he had been indirectly discriminated against.