Creating a fairer Britain
Discrimination occurs when you are treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified.
It is important to understand that the Human Rights Act does not protect you from discrimination in all areas of your life. Instead it protects you from discrimination in the enjoyment of those human rights protected by the European Convention of Human Rights. This reflects the core idea that all of us, no matter who we are, enjoy the same human rights and should have equal access to them.
There are other laws that protect you from discrimination more generally.
The protection against discrimination in the Human Rights Act is not free-standing. In other words, in order to rely on this right, you need to show that your ability to enjoy one or more of the other rights in the Human Rights Act has been affected by the discriminatory treatment. However, you do not need to prove that this other human right has actually been breached.
The Human Rights Act prohibits discrimination on a wide range of grounds including ‘sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’.
The case law relating to this right has shown that the term ‘other status’ includes, among other things, sexual orientation, illegitimacy, marital status, trade union membership, transsexualism and imprisonment. It can also be used to challenge discrimination on the basis of age or disability.
The anti-discrimination protection in the Human Rights Act has been successfully used on behalf of a gay couple who wished to be treated in the same way as a heterosexual couple for the purposes of the rules relating to succession to a tenancy.
(Example taken from Human rights, human lives, Department for Constitutional Affairs, 2006.)
The courts have also established that the human rights protection from discrimination includes indirect discrimination. Indirect discrimination occurs when a rule or policy that appears to apply to everyone equally actually works to the disadvantage of some groups. For example a requirement that all employees be over six feet tall may be indirect discrimination where it is not strictly required for the job, since women and people from some race groups will be disadvantaged.
Not all differential treatment is discriminatory. Discrimination occurs when differential treatment cannot be objectively and reasonably justified.
Sometimes it is legitimate to treat people differently. For example, a court can impose a sentence on someone who has been found guilty of a criminal offence. In this situation, the court will treat this person differently to someone who has not been convicted of a criminal offence, but this is permissible because the less favourable treatment can be objectively and reasonably justified according to our criminal justice policies.
Positive discrimination occurs when a disadvantaged group is treated more favourably in order to overcome an existing situation of inequality. Where it can be objectively and reasonably justified, more favourable treatment in relation to the enjoyment of human rights is permissible under the Human Rights Act.
The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
A married couple, in which the wife was the sole earner, complained that the UK income tax regime had the effect of taxing comparable couples in a discriminatory way on grounds of sex, marital status and religion. First, married couples in which the husband was the sole earner were taxed more heavily than married couples in which the wife was the sole earner. Second, married couples were taxed more heavily than co-habiting couples who were not married. The European Commission of Human Rights found that the tax measures which gave extra advantages to a wife who was the earner in the family had an objective and reasonable justification in positively encouraging married women to work. The court did not accept that married couples were in a similar position to co-habiting couples for the purposes of taxation and Article 14 only protects people from discrimination who are less favourably treated compared to others in a similar position. Accordingly, there was no violation of Article 14.
(Case summary taken from Human rights, human lives, Department for Constitutional Affairs, 2006.)