Can and does “reverse discrimination” exist and what does it mean?

The Equality Act 2010 and the legislation before it is an attempt to prevent people being subjected to detrimental treatment in the workplace (and elsewhere) on account of a characteristic which they have or which is special to them. 

Currently the nine protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. 

Over time society has recognised that people have been treated unlawfully, sometimes illegally, and certainly badly because they have one or more of these characteristics.
However, how far has the law succeeded in creating an equal playing field for all?  This is where an analysis of “reverse discrimination” comes in useful. 
If we were to ask you to give an example of reverse discrimination what would you say?  Would it be something like?
a) An employer following positive measures as part of a recruitment or selection process to enhance diversity in the workplace. 
b) A situation where a group of people who are customarily seen as disadvantaged in the workplace discriminate against an individual who would normally identify with the group causing most discrimination e.g. women subjecting men to sex discrimination.
c) A discrimination dispute arises from an apparent reversal of current social morals e.g. a house burglar claiming that his victims should make allowances for his disabilities.
 If we think of reverse discrimination being those cases where the people who would generally need to rely on the Act to protect them are actually treating someone else detrimentally on account of a protected characteristic, how many such cases are there? 
If we trawl through the Case Law for examples of “reverse discrimination” there are very few.  Let us take a simple example such as men being treated detrimentally on account of their gender (as opposed to women).  You may know of some real examples but reported cases are as rare as hen’s teeth! 

One example which went to the Employment Appeal Tribunal is Metropolitan Police v Mr Denby.  He was found to have been discriminated against on the grounds of his gender by the way female colleagues investigated, reported on and dealt with his work and behaviour.  He succeeded with a compensation award of £870,000.
Another example is where, ironically, a Police Force was trying to do the right thing but being a bit over zealous in their diversity recruitment.  They managed to discriminate against a white heterosexual male applicant.  The Police Force relied on Section 159 of the Equality Act 2010 which permits positive action measures to address perceived diversity weaknesses in an organisation – but in this case they went too far.
There are also those mixed cases where two sets of principles can collide.  The classic example being the Northern Ireland Bakery Case where the bakers refused to take an order for a cake bearing certain words for a gay couple’s wedding because it was against their religious beliefs.

The Supreme Court ultimately ruled in the baker’s favour, essentially because they found they were not discriminating against the individuals personally (for whom they had baked before and said they would do so again), but they were objecting to the words required.
So “reverse discrimination” cases are extremely rare and massively outweighed by the plethora of the “normal” cases on the other side of the scales of justice.  This suggests that we have a very long way to go before we have an equal and just society as envisaged by those who brought the legislation in. 
If we take a step back and look at society as a whole we know this to be true.  Witness racism in football and demonstrations outside Schools in respect of sex education and LGBT equality.
The specific cases above prove that Equality Rights apply to all and that reverse discrimination is only perceptual. 

However, as Employers we would be wise to remind ourselves of that and sense check that we have the balance right so you do not find yourself in a situation were you are using (inadvertently or otherwise) the shield as a sword.
We can assist you by guiding you through this complex area and advising you of your legal obligations, as well as helping you to promote equality in your workplace. Contact our employment department today.

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