Understanding Direct Discrimination: Key Insights

Direct Discrimination

Direct discrimination occurs when a person is treated less favourably because of a protected characteristic. Section 13(1) Equality Act 2010 states that:

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

Less Favourable Treatment

A person can prove less favourable treatment by comparing themselves with someone who does not share the same protected characteristic who has been (or would have been – hypothetically) treated more favourably. That person is called a ‘comparator’.  If no comparator can be found, the comparison can be done on a hypothetical basis. The main condition is that the relevant circumstances of the comparator and the claimant (protected characteristic aside) cannot be materially different (s.79 Equality Act 2010).  

…because of a protected characteristic

Less favourable treatment on its own is not unlawful. It can only be unlawful when it is significantly influenced by a protected characteristic. As a result, to prove direct discrimination, a causal link between the less favourable treatment and the protected characteristic must be established. It is this particular feature of direct discrimination which makes it difficult to prove, and where most cases fail. 

Reference in s.13 EA to “a” protected characteristic as opposed to “a person’s” protected characteristic means that the person alleging direct discrimination does not need to have the protected characteristic themselves – the protected characteristic only needs to be the cause of the less favourable treatment they have experienced.  Direct discrimination can therefore be committed when the employee is perceived to have the protected characteristic, or where the protected characteristic relates to someone or something else, by general association.  

Example of Discrimination which is Direct

An example of discrimination which is direct would be:

A club that organises salsa evenings deletes a woman from their list as soon as they learn that she is pregnant, on the assumption that during her pregnancy, she will not want to come to salsa evenings. This decision, resulting in unfavourable treatment based on a stereotype, is likely to be pregnancy discrimination.

Defences to direct discrimination?

There is no defence to direct discrimination except for age. However, under Schedule 9, paragraph 1, EA direct discrimination is permitted where being of a particular race, sex, disability, religion/belief, sexual orientation or age is an occupational requirement. Where this is the case, the exception will apply provided that:

(a)  The application of the requirement is a proportionate means of achieving a legitimate aim; and

(b)  the person to whom it is applied does not meet it (or, except in the case of sex, does not meet it to the reasonable satisfaction of the person who applied it).

For age, the employer has a defence to direct discrimination if it can show that the directly discriminatory treatment is a proportionate means of achieving a legitimate aim (s.13(2) EA).

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Direct Type Discrimination: Key Points

Direct type of discrimination occurs where "because of a protected characteristic, A treats B less favourably than A treats or would treat others". The Equality Act 2010, Section 13(1), defines it as when "A discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others". This form of discrimination is challenging to prove, often failing due to the difficulty in establishing a direct causal link between the less favourable treatment and the protected characteristic.

Comparators and Less Favourable Treatment

To demonstrate less favourable treatment, a claimant typically compares themselves with a ‘comparator’ who does not share the same protected characteristic but was treated more favourably, or would have been treated more favourably in a hypothetical scenario. The crucial condition is that the relevant circumstances of the comparator and the claimant must not be materially different, protected characteristic aside (s.79 Equality Act 2010). However, in pregnancy or maternity discrimination, formal comparators are not required due to European case law.

Causation

"Because of a Protected Characteristic" Less favourable treatment is only unlawful if it is significantly influenced by a protected characteristic. Therefore, a causal link between the treatment and the protected characteristic must be established. Tribunals must consider the employer's conscious or subconscious reason for the treatment and determine if a protected characteristic played a significant part in it.

Whose Protected Characteristic?

The person alleging a direct type of discrimination does not necessarily need to possess the protected characteristic themselves. The protected characteristic merely needs to be the cause of the less favourable treatment. This covers situations such as:

Associative discrimination

Less favourable treatment because of an employee's association with someone who has a protected characteristic. For example, an employee without a disability could bring a direct disability discrimination claim if treated less favourably because they have a disabled child.

Perceived discrimination

An employee wrongly perceived to have a protected characteristic (other than marriage or civil partnership) is protected against less favourable treatment based on that mistaken belief. An example would be an employer mistakenly believing an employee of Asian origin is Muslim and treating them less favourably for that reason.

Exceptions to the Victim's Characteristic Requirement

The discrimination need not be because of the victim's protected characteristic, except in marriage and civil partnership cases, where the discrimination must specifically be "because B is married or a civil partner".

Favourable Treatment

It is not considered directly discriminatory to treat a disabled person more favourably than a non-disabled person, or to provide women with special treatment in connection with pregnancy, childbirth, or maternity.

Defences and Justification for Direct Type of Discrimination

Generally, there is no defence to directly discriminatory conduct except in cases concerning age. However, employers may be able to rely on specific exceptions outlined in the Equality Act 2010.

Objective Justification

While directly discriminatory treatment is usually not justifiable, it can be objectively justified in age discrimination cases. Objective justification requires the employer to demonstrate that the discriminatory treatment is a "proportionate means of achieving a legitimate aim". The burden of proof for justification rests with the employer, who must show a legitimate aim corresponding to a genuine business need, and that their actions were a proportionate means of achieving that aim.

Occupational Requirements (OR)

Directly discriminatory treatment can be permitted where being of a particular protected characteristic is an occupational requirement for a specific job. This exception applies if the application of the requirement is a proportionate means of achieving a legitimate aim, and the person to whom it is used does not meet it (or, except in the case of sex, does not meet it to the reasonable satisfaction of the person who applied it). This includes characteristics such as sex, race, disability, religion or belief, sexual orientation, or age.

Positive Action

The Equality Act 2010 includes provisions for lawful positive action. This allows employers to take specific proportionate measures to address disadvantages, particular needs, or under-representation for people sharing a protected characteristic, without incurring discrimination claims from those without that characteristic. Specifically, in recruitment and promotion, an employer can treat a person with a relevant characteristic more favourably if they are "as qualified as" other candidates. However, this does not permit "positive discrimination," which generally gives an unfair advantage based on a protected characteristic.

Other Relevant Considerations

Discriminatory Statements

As of 1 January 2024, the Equality Act 2010 includes a new section 60A, which expressly prohibits making a discriminatory statement in connection with a "relevant decision" (e.g., a decision to offer employment or work). A statement is discriminatory if it is directed to the public or a section of the public and, if made in connection with a relevant decision, would amount to directly discriminatory treatment.

Combined or Dual Discrimination

(Not Yet in Force) Section 14 of the Equality Act 2010 introduced a new cause of action for "combined discrimination," which would allow direct discrimination claims based on a combination of two protected characteristics (age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation). This section has not yet been brought into force. Currently, tribunals address claims involving multiple characteristics as separate heads of claim, and the existing directly discriminatory treatment is often considered adequate to cover such issues. The government is currently seeking views and evidence on the prevalence of combined discrimination and evaluating its wider application.

Burden of Proof

In directly discriminatory treatment claims, a two-stage approach to the burden of proof applies. The claimant must first show a prima facie case, meaning they present facts from which a tribunal could conclude that discrimination has occurred. If a prima facie case is established, the burden then shifts to the employer to provide a sufficient explanation to show that they did not discriminate. A specific rule applies in direct disability discrimination claims by job applicants: the burden of proof shifts automatically to the employer if the complaint concerns the employer's conduct based on information provided in response to a health question.

Case Law Examples

Bull v Hall [2013] UKSC 73

The Supreme Court found that the owners of a hotel in Cornwall had directly discriminated against a gay couple who were in a civil partnership. Based on their Christian belief that sex outside marriage was sinful, they refused to allow the couple to share a double room.

The Supreme Court stated that the status of those in a civil partnership (at that time in 2008) was indissociable from their sexual orientation. Therefore, this represented a form of directly discriminatory treatment based on sexuality. In addition, a further claim of indirect discrimination, which was not justified, was accepted by the court.

Lee v Ashers Baking Company [2018] UKSC 49

The case centred on the refusal of the owners of the bakery, based on their Christian beliefs, to make a cake for the claimant with a message in icing on it, reading: “Support gay marriage”.

Mr Lee, who is gay, brought an action for discrimination, based on several regulations, which are equivalent to the obligations contained in the Equality Act.

The Supreme Court upheld the company’s appeal. Lady Hale stated that the message was not indissociable from Lee’s sexuality, unlike the situation in Bull. The objection was to the message on the cake and not to any characteristics of the messenger. Anyone who had asked for such a cake, regardless of their sexual orientation, would have been treated similarly. The message could be and was supported not just by gay people, but also by their families and by those in the broader community who recognise the social benefits of the commitment to marriage. (Note that this was also against the background of the fact that the bakery both employed and served gay people.)

O'Reilly v BBC & Anor 2200423/2010 (ET)

An employment tribunal upheld direct age discrimination and victimisation claims, stating that employees are protected against "combined discrimination" by existing direct discriminatory law.

Khan v Masood Ghafoor t/a Go Go Real Estate ET/1809595/09

An employment tribunal found directly discriminatory treatment on grounds of both sex and religious belief when a female Muslim employee was dismissed for refusing to wear a headscarf, as a man or non-Muslim would not have been required to do so.