The Equality Act 2010 385So if a black employee was not promoted because he had complained about discrimination,
this would amount to victimisation.
Discrimination against employees and applicants for employment
Section 39 states that when selecting employees it is unlawful to discriminate against a
person or victimise a person in the following ways:
n by making discriminatory arrangements for the purposes of determining who should be
offered employment; or
n by offering discriminatory terms of employment; or
n by refusing or deliberately omitting to offer employment.
As regards existing employees, it is unlawful to discriminate against a person or victimise
a person:
n in the terms of the employment;
n in the way access to opportunities for promotion, transfer or training, or to any other
benefits are given; or by refusing or deliberately omitting to allow access to these things; or
n by dismissing the employee or subjecting him or her to any other detriment.
Schedule 9 to the Act provides that, as regards not offering a person a job, not offering
access to promotion etc. or dismissing a person, the employer might have the defence of
occupational requirement. The employer will have to show that, having regard to the
nature or context of the work, a requirement imposed by the employer is an occupational
requirement which the employee or applicant does not have. The employer will also need
to show that the application of the requirement is a proportionate means of achieving a
legitimate aim. So, for example, an employer making a film about Nelson Mandela could
insist that the actor who was to play Mandela should be both a man and black.
Section 40 requires employees not to harass employees or applicants for employment.
Employers also have a duty to make sure, as far as is reasonably practicable, that third
parties do not harass either.
Section 60 prevents employers from asking applicants for jobs about their health, except
in so far as this is to do with the applicant’s ability to do the job or for the purpose of
monitoring diversity.
Equal pay and conditions for women
The Equality Act requires that men and women working for the same employer should
be treated equally as regards pay and other benefits. It is convenient to talk of a woman
bringing a claim under the Act but there is no reason why a man should not bring a claim.
Section 65 allows a woman to bring a claim on three grounds:
n that she does like work with that of a male comparator;
n that the work is rated as equivalent; or
n that the work is of equal value.
Article 141 of the Treaty of Rome requires Member States of the EC to ensure the principle
of equal pay for male and female workers if they do equal work, or work of equal value. In
PickstonevFreeman plc (1988)the House of Lords indicated that national courts should
try to interpret UK legislation so as to give effect to Article 141.
The Equality Act 2010 has the same effect as the Equal Pay Act 1970 in this area.
Therefore, cases decided under the Equal Pay Act will continue to apply.