Although claims of multiple discrimination are often watered down to claims of a single ground, it would be incorrect to state that no moves towards the recognition of multiple discrimination had been made in the UK. In fact, even the failed attempts to claim multiple discrimination in the Pearce and Coker and Osamor cases of 2001 have brought the issue of multiple discrimination to the notice of claimants, the legal community and public interest groups so it seems clear that legal change is indeed on the horizon.
Additive Discrimination
Claims of additive multiple discrimination have already occasionally been made before an employment tribunal. In Khanum v IBC Vehicles Ltd (2002), a Muslim woman who suffered discrimination in the workplace after she started to wear a hijab brought a successful claim of discrimination on the grounds of both race and sex. The tribunal in this case considered the aspects of race discrimination suffered in isolation from sex discrimination suffered and vice versa, and so adopted an additive approach. Although such cases have no binding effect, they may well have a persuasive effect if, in future, cases clearly involving additive multiple discrimination are brought before the higher courts.
Intersectional Discrimination
Despite this positive step concerning additive discrimination, there have been no such positive signs involving cases of intersectional multiple discrimination as the current statutes are unable to deal with any claim that alleges intersectional discrimination based on an indivisible combination of multiple social characteristics.
Modern Developments
Prior to the Equality Act 2006, the Commissions tasked with applying the various pieces of anti-discrimination legislation were discrete institutions, they are unable to communicate or share expertise with each other and so, according to Diamond Ashiagbor in her essay 'The Intersection between Gender and ‘Race’ in the Labour Market', "claimants alleging race and sex discrimination cannot appeal to a one-stop agency which would adopt a ‘holistic’ approach to multiple discrimination". Since, however, the 2006 Act abolished these separate Commissions and introduced the Commission for Equality and Human Rights, an initial step has undoubtedly been taken towards the recognition of the indivisible nature of certain varieties of discriminatory treatment. Since a single Commission will now be responsible for assessing the effectiveness of the anti-discrimination legislation and for recommending ways to tackle all varieties of discrimination, it is highly likely that the Commission will spearhead a move towards altering the existing legislation to a that which follows a more approach model.
Despite the positive signs for multiple discrimination mentioned above, recent jurisprudence has shown that there is still no effective method under UK law of dealing with these claims of multiple grounds. The House of Lords considered in Bahl v the Law Society in 2004 whether, and if so how, current legislation could be used to address claims of multiple discrimination. Bahl was an Asian woman who alleged that she had been discriminated against on the grounds of her race and her sex.
Although at first instance the Employment Tribunal held that she could compare herself to a white man so that both her race and sex could be taken into account, subsequently both the Employment Appeal Tribunal and the Court of Appeal held that this was the wrong approach, deciding that, even if the claimant had experienced them as inextricably linked, each possible ground of discrimination must be considered separately and have an individual verdict given on it.
References:
Ashiagbor, D. "The Intersection between Gender and 'Race' in the Labour Market" in Sheldon, S. (ed) Feminist Perspectives on Employment Law (1998) (London: Cavendish)
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