Equality Act 2010, section 39

Employees and applicants

Part 5 Work

(1)An employer (A) must not discriminate against a person (B)—

(a)in the arrangements A makes for deciding to whom to offer employment;

(b)as to the terms on which A offers B employment;

(c)by not offering B employment.

(2)An employer (A) must not discriminate against an employee of A's (B)—

(a)as to B's terms of employment;

(b)in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(c)by dismissing B;

(d)by subjecting B to any other detriment.

(3)An employer (A) must not victimise a person (B)—

(a)in the arrangements A makes for deciding to whom to offer employment;

(b)as to the terms on which A offers B employment;

(c)by not offering B employment.

(4)An employer (A) must not victimise an employee of A's (B)—

(a)as to B's terms of employment;

(b)in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service;

(c)by dismissing B;

(d)by subjecting B to any other detriment.

(5)A duty to make reasonable adjustments applies to an employer.

(6)Subsection (1)(b), so far as relating to sex or pregnancy and maternity, does not apply to a term that relates to pay—

(a)unless, were B to accept the offer, an equality clause or rule would have effect in relation to the term, or

(b)if paragraph (a) does not apply, except in so far as making an offer on terms including that term amounts to a contravention of subsection (1)(b) by virtue of section 13, 14 or 18.

(7)In subsections (2)(c) and (4)(c), the reference to dismissing B includes a reference to the termination of B's employment—

(a)by the expiry of a period (including a period expiring by reference to an event or circumstance);

(b)by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice.

(8)Subsection (7)(a) does not apply if, immediately after the termination, the employment is renewed on the same terms.

Definitions used in section 39 3

Employment

(2) “Employment” means—

(a)employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;

(b)Crown employment;

(c)employment as a relevant member of the House of Commons staff;

(d)employment as a relevant member of the House of Lords staff.

Defined in s.83(2) · see it in the full Act

“employment” and related expressions are (subject to subsection (11)) to be read with section 83;

Defined in s.212(1) · see it in the full Act
detriment

“detriment” does not, subject to subsection (5), include conduct which amounts to harassment;

Defined in s.212(1) · see it in the full Act
equality clause

“equality clause” means a sex equality clause or maternity equality clause;

Defined in s.212(1) · see it in the full Act

Cases considering section 39 119

HSBC Bank plc v Carmen Chevalier-Firescu

[2024] EWCA Civ 1550 · 11 December 2024Limits

The Court treated section 39 as central to the unresolved question whether the alleged race-related conduct fell within the statutory protection for an applicant for employment. The ET had not explained which interpretation of the claim it adopted. (see paras [41]; [63]; [84]-[87])

Nicola Clark & Anor v Chief Constable of Derbyshire Constabulary & Ors

[2024] EWCA Civ 676 · 19 June 2024

Applies section 39(2) to identify the relevant employment conduct. The alleged rule concerned access to benefits or, potentially, subjecting the former officers to a detriment. (see para [69])

City of London Police v Geldart

[2021] EWCA Civ 611 · 28 April 2021Limits

Section 39(2) is the work-context prohibition relied on for the discrimination claims. The court held that section 71 did not remove its effect in this case. (see paras [31]; [87]-[90]) The court held that the indirect claim was not discrimination as to the terms themselves: the terms gave the claimant the same allowance entitlement as a man. (see para [90]) The alleged failure to accord the existing London Allowance entitlement was properly characterised as subjecting the claimant to a detriment. That characterisation meant section 71 did not bar the indirect claim. (see para [90])

99 more judgments, and what each says about section 39, are in the case-law panel in the full Act.

Explanatory note

143.This section makes it unlawful for an employer to discriminate against or victimise employees and people seeking work. It applies where the employer is making arrangements to fill a job, and in respect of anything done in the course of a person’s employment. In respect of discrimination because of sex or pregnancy and maternity, a term of an offer of employment which relates to pay is treated as discriminatory where, if accepted, it would give rise to an equality clause or if an equality clause does not apply, where the offer of the term constitutes direct or dual discrimination. It also imposes the reasonable adjustments duty set out in section 20 on employers in respect of disabled employees and applicants.

144.This section replaces similar provisions in previous legislation.

All the explanatory notes for the Act