Intersectionality and what Section 14 of the Equality Act means for legally vulnerable workers

Can section 14 of the Equality Act serve the cause of action against intersectional discrimination, asks Zia Akhtar, member of the Scottish Law Agents Society

Introduction

The issue of discrimination in the workplace transcends the protected characteristics of the Equality Act 2010, affecting multiple attributes of the employee. Agency workers who are employed in labour-intensive jobs are exposed to discrimination because of their race, religion, nationality and ethnic origins. The legislation is pending reform and there is a need to increase the protections available for legally vulnerable workers in the wider employment market. This is in order to enact a framework for reviewing the intersectional discrimination of agency workers who have a de facto and a de jure employer.  

Section 14 of the Equality Act contains a provision to cover direct discrimination on up to two aggregate grounds (such as age, disability, gender, race or religion) – but this section has never been brought into effect. Direct discrimination arises when workers are victimised for a protected characteristic. This is evident for agency workers of foreign extraction, for example, who may be victimised for their national or ethnic background and who are not able to work on the same terms as UK nationals. (Migrants and Discrimination in the UK, The Migration Observatory, 2024.)

By providing only for ‘direct’ discrimination, section 14 covers harassment and instruction to discriminate, which are deemed particular manifestations of direct discrimination. The European Court of Human Rights has found infringements to Article 14 of the European Convention on Human Rights in cases of harassment and instruction to discriminate; for instance, in conjunction with Article 11 concerning the right of peaceful assembly, Bączkowski and Others v Poland [2007] ECHR 1543/06.

However, even if section 14 were implemented, its scope remains limited as it applies only to two grounds of direct discrimination. Yet incidents of intersectional discrimination could exceed two characteristics.

There is a need to shift to a broader and more transparent approach when considering claims where several characteristics are alleged, so these can be pleaded in court under a single cause of action.   

Reality of intersectional discrimination

There is an acknowledgment that intersectional discrimination cases cannot be reconceptualised to fit into the current rigid legal framework. The grounds exist for it to be framed into law because both direct and indirect discrimination can affect those working in labour-intensive industries, such as the construction and service industries, where there are specific rules that govern acts of discrimination: “Labour users […] are liable for acts of discrimination against agency workers committed by them (or by their employees or agents).” (Recruitment and Employment in the Meat and the Poultry Processing Industry, Equality and Human Rights Commission, 2012.)

The scope of intersectional discrimination needs to be evaluated before section 14 becomes operative. This includes the definition under this provision that it only applies to direct discrimination. The reason for non-implementation also needs to be examined. How have judges circumvented the problem in the tribunals and courts? And assuming that the need to implement still exists, is there the political will to bring forth a change, perhaps through a commencement order?

The Government has indicated that it will not enforce the introduction of the dual discrimination claims, citing the cost to business and bureaucratic burdens on the employer. The Discrimination Law Association (DLA) has challenged this, stating “the difficulty and uncertainty for intersectional [or] combined characteristic claims under current case law”. (DLA, written evidence to parliament, MEW0081, paras 56-61; supplementary written evidence, MEW0093.) 

The argument for operationalising section 14 is that intersectional discrimination is not a case of someone being discriminated against in relation to one particular event because of, for example, their age and disability. It is discrimination under two (or more) categories that happens at the same time but is not related, and it can be additive or cumulative discrimination. (Al Jumard v Clwyd Leisure Ltd [2008] IRLR 345.)

The requirement is to specify in discrimination law what makes it a norm for mostly agency workers, and evaluate the reasoning underlying the intersectional basis, which is a novel concept in the English legal framework. It is accepted that the real issue in enacting discrimination law is to override persistent, pervasive and considerable group disadvantage. This can be collated by analysing the data collected from national and minority groups who have faced discrimination through the sampling technique. The labour law includes a description of how the data collection tools are administered, aggregated and then analysed.

This form of multiple discrimination has given rise to particular difficulties in industry because, unlike with “standard or additive discrimination where the law provides adequate protection […] there is a gap in protection for intersectional discrimination [and] section 14 seeks to address that gap” . (‘Equality and Discrimination: What is the significance of the failure to bring section 14 of the Equality Act 2010 into force?’ Muriel Robison, Institute of Employment Rights Conference Series.)

Conclusion

The labour laws can be distinguished from employment laws by their intention to protect collective employee rights, as well as those of minorities and groups such as those working in the gig economy. Their rights and interests are served by shielding groups from victimisation or harassment. The employment laws refer to the protection of individual employee rights and they govern the contracts, wages, and working hours, as well as discrimination and harassment.

In furthering cumulative discrimination as a factor in the market, the dynamics need to be formulated in legislation where the discrimination exists in industry that impacts more than one strata. There is evidence of a rise in intersectional discrimination and a regulatory framework needs to be devised to overcome this form of linear discrimination. This needs to address both direct and indirect discrimination. An extension of section 14 could reverse themployment law and affect workers who may not be governed by formal contracts.

Written by Zia Akhtar, member of the Scottish Law Agents Society