What is discrimination and what isn't

What is discrimination and what isn’t – ‘gay cakes’ and ‘fat ginger pikeys’

Proving a case of discrimination or harassment isn’t always easy. Many factors come into play and the context in which the incident took place is an important factor. Playful banter in one situation can be grounds for a claim in another.

This was highlighted in the recent case of the ‘fat ginger pikey’ brought to the Employment Appeal Tribunal. The claimant had been dismissed for poor performance, but brought several claims against his former employer, including discrimination and victimisation on grounds of disability and race. He also claimed harassment on the grounds that he had been called a ‘fat ginger pikey’ on several occasions. None of the claims were upheld.

Such comments would normally be deemed offensive so this is surprising, as the judge acknowledged. But she pointed out that he had not complained at the time; that he regularly used the ‘c-word’ in office conversations so was unlikely to be easily offended; and that the office culture was one of teasing and banter amongst the competitive sales team. As such, use of the phrase was not deemed to be harassment.

What are the rules around discrimination?

The rules on what constitutes discrimination are clear. It is against the law to discriminate against anyone because of:

  • age
  • being or becoming a transsexual person
  • being married or in a civil partnership
  • being pregnant or on maternity leave
  • disability
  • race including colour, nationality, ethnic or national origin
  • religion, belief or lack of religion/belief
  • sex
  • sexual orientation

However, as the recent ‘gay cake case’ shows, judges themselves don’t always agree on what is and what isn’t discrimination.

If you don’t already know, the case centred on the refusal of a Christian baker to make a cake with the message ‘Support Gay Marriage’. The customer successfully took the bakery to court for discrimination on the grounds of sexual orientation and political beliefs and also won a subsequent appeal. The Supreme Court has now overruled that decision, stating that the bakery did not discriminate because of the sexual orientation of the customer and had a right to refuse to make the cake because it wasn’t compatible with their religion.

“Both these cases show that discrimination isn’t always easy to prove,” says Laura Thorpe, Litigation Executive at PM Law. “The law is very specific on the grounds for discrimination or harassment and a successful case has to meet a range of criteria. Expert legal advice is absolutely essential to make sure the best possible case is put forward.”

The PM Law team have many years’ experience in cases of discrimination and harassment and have helped many clients to bring successful claims to the Employment Tribunal. If you believe you have been the subject of discrimination or harassment, contact us on 0114 220 1795 or email disenquiry@pm-law.co.uk.