DIRECT DISCRIMINATION

A guide on direct discrimination from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on direct discrimination, please contact us as soon as possible.

This web page should be read in conjunction with the web page DISCRIMINATION - PROTECED CHARACTERISTICS

What is direct discrimination?

Direct discrimination is prohibited under section 13 of the Equality Act 2010 (EqA) and occurs where:

an employer (or other person) discriminates against an employee, if
because of a protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation)
the employer (or other person) treats the employee less favourably than the employer (or other person) treats or would treat others.

If the protected characteristic is:

age - an employer (or other person) does not discriminate against an employee if the employer (or other person) can show that its treatment of the employee to be a proportionate means of achieving a legitimate aim
disability - and the employee is not a disabled person, the employer (or other person) does not discriminate against the employee only because the employer (or other person) treats or would treat disabled persons more favourably than it treats the employee
marriage and civil partnership - applies only if the treatment is because it is the employee who is married or a civil partner
race - less favourable treatment includes segregating the employee from others
sex - less favourable treatment of a woman includes less favourable treatment of her because she is breastfeeding and, in the case, where the employee is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.

Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged.

An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.

Examples:

a man of 64 is passed over for promotion on the basis that his employer believes that he will soon be retiring, albeit the man intended to work until he is 70 [age]
an employer treats an individual less favourably because it perceives that the employee has a disability (eg the employer thinks that the employee has autism when they do not) [disability]
an employer treats an individual less favourably because of the disability of someone with whom the employee associates (eg because the employee’s wife has cancer) [disability]
a saleswoman informs her employer that she intends to spend the rest of her life living as a man. Because of this, she is demoted to a role without client contact [gender reassignment]
an employer’s accommodation policy requires that married couples nominate one of them as head of household. The wife nominated herself which resulted in her being entitled only to family accommodation, at an additional cost, and not to single accommodation as before. She already owned a family home with her husband. She simply wanted to be provided with the single accommodation that she would have been entitled to, had he not got married. The employer’s assumption that the married couple must operate with one partner dependent on the other for the provision of a family home was inherently directly discriminatory [marriage and civil partnership]
an employer decides not to offer a prospective employee a job when she announces that she is pregnant during an interview [pregnancy and maternity]
an employer rejects an American job applicant because it does not like USA, even though she is the best candidate for the job, this will be direct race discrimination [race]
an employer rejects a Christian job applicant because it does not like Christianity, even though she is the best candidate for the job, this will be direct religious discrimination [religion or belief]
a woman with young children fails to obtain a job because it is feared that she might be an unreliable member of staff [sex]
a woman or a man is subjected to sexual innuendo or other offensive conduct of a sexual nature at work on the grounds of their sex [sex]
an employer refuses to appoint a job applicant because it finds out that she has a same-sex partner [sexual orientation].

Racial segregating is specifically prohibited under the EqA. There is no need to identify a comparator. The segregation must, however, be a deliberate act rather than a situation that has occurred inadvertently (eg a British marketing company which employs predominantly British staff recruits Irish nationals and seats them in a separate room nicknamed ‘Little Ireland’).

An employer will also commit direct discrimination if, in relation to absence from work because of gender reassignment, it:

treats an individual less favourably than it would have done had they been absent because of sickness or injury
treats an individual less favourably than it would have done had they been absent for some other reason and it was not reasonable for it to do so.

An employer cannot be liable for direct discrimination because of disability unless it knew, or should have known, about the disability.

The appropriate test requires an employment tribunal to consider the reason why an employee was treated less favourably - what was the employer’s conscious or subconscious reason for the treatment?

Comparators

In claiming direct discrimination, an employee, worker or contractor will need to prove that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs. The exception is pregnancy and maternity where no comparator is required.

Justification

Direct discrimination cannot be objectively justified. The exception is age, which can be objectively justified if an employer can show that its treatment is a proportionate means of achieving a legitimate aim. The employer’s aim must meet a social or employment policy aim, not just the employer’s private interests (eg facilitating the participation of older workers in the workforce).

In some situations, an employer might be able to rely on an exception, perhaps by pointing to an occupational requirement to avoid liability for direct discrimination.

Discrimination by perception

For the purposes of establishing direct discrimination, it does not matter whether the employee has the protected characteristic in question it can be perceived.

Examples of an employer treating an individual less favourably because it perceives that an employee:

is 60 when he is actually 50) [age]
has autism when they do not) [disability]
is a man when she is actually a woman [gender reassignment]
is Welsh when he is actually English [race]
is a Muslim when he is actually a Sikh [religion or belief]
is a man when she is actually a woman [sex]
is a lesbian because she has short hair, wears trousers and likes football [sexual orientation].

Perceived discrimination does not apply to marriage and civil partnership and pregnancy and maternity.

Discrimination by association

It does not matter whether an employee does not have the protected characteristic in question, as discrimination can be by association.

Examples an employer treats an individual less favourably because:

an employee’s wife is 10 years older than the employee) [age]
an employee’s wife has cancer) [disability]
an employee’s wife has undergone gender reassignment [gender reassignment]
an employee’s wife is Scottish [race]
an employee’s wife is a Catholic) [religion or belief]
an employee’s wife has undergone gender reassignment) [sex]
it decides not to offer a job applicant a role when told that the job applicant’s daughter is a lesbian [sexual orientation].

Discrimination by association does not apply to marriage and civil partnership and pregnancy and maternity.

Direct discrimination will also occur if an employer instructs, causes or induces another to commit discrimination. It will also commit an infringement if it causes detriment to an employee because eg they refuse to obey an instruction to act in a way that would disadvantage persons of a particular group.

Liability for direct discrimination

An employer will be vicariously liable for the acts of its employees and workers unless it can show it took reasonably practical steps to prevent it from happening.

What remedies are available for direct discrimination?

If an employee believes that an employer (or other person) has directly discriminated against them they can bring an employment tribunal claim.

Employment tribunals can award unlimited compensation, which can include an award for injury to feelings and financial loss because of the discrimination.

How long do you have to bring an employment tribunal claim?

An employment tribunal claim for direct discrimination must be received by a tribunal within 3 months of the complaining act (ie 3 months less 1 day). This can be the last act in a series of detrimental acts over a period of time.

The time limit can be extended during Acas early conciliation, which must be started before the time limit has expired.

The time limit is a strict one and will only be extended in certain circumstances.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Why choose Marjon Law for direct discrimination advice?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, many of which involved direct discrimination.

As specialist employment lawyers, our clients' interests are paramount to us.

We ensure that all our clients receive the best advice possible.

We will advise on direct discrimination and any subsequent employment tribunal claim.