Understanding Direct Discrimination in UK Employment Law
Direct discrimination is a core concept within UK employment law, specifically addressed by the Equality Act 2010 (EqA 2010). It aims to prevent less favourable treatment of individuals "because of a protected characteristic". Understanding its nuances is crucial for both employees seeking justice and employers ensuring compliance.
At Employment law UK, we offer comprehensive support and expert advice on direct discrimination claims, specialising in complex and often overlooked cases, including those involving disability (especially neurodiversity), race, and sexual harassment. We help you navigate the legal complexities, crafting robust claims (ET1) and preparing for all stages of Employment Tribunal proceedings, including preliminary hearings and witness statement exchanges. Our strategic approach aims for the best possible outcome, with a high success rate often leading to financial settlement.
What is Direct Discrimination?
Direct discrimination occurs when, "because of a protected characteristic, A treats B less favourably than A treats or would treat others". This definition, enshrined in Section 13(1) of the EqA 2010, applies across various fields including employment (Part 5), goods and services (Part 3), premises (Part 4), education (Part 6), and membership of clubs and associations (Part 7).
The legislation focuses on the 'reason why' treatment occurred, which can involve both conscious and subconscious factors. It's important to note that the protected characteristic causing the less favourable treatment does not necessarily have to belong to the victim themselves; it can be due to their association with someone else who has a protected characteristic or because the discriminator perceives the victim to have a protected characteristic.
Protected Characteristics
The EqA 2010 protects individuals from direct discrimination based on nine specific characteristics:
Age
Disability
Gender reassignment
Marriage and civil partnership
Pregnancy and maternity
Race
Religion or belief
Sex
Sexual orientation
While these generally apply across the EqA 2010, there are slight differences in certain parts; for instance, marriage and civil partnership discrimination and age discrimination for individuals under 18 generally do not apply to the provision of goods, services, and facilities (Part 3).
Key Elements of a Direct Discrimination Claim
To successfully bring a direct discrimination claim, several key elements must be established:
1. Detriment
A claimant must demonstrate that they have suffered a "detriment" as a result of the less favourable treatment. While the EqA 2010 does not define "detriment," case law clarifies it as something a "reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work".
No need for physical or financial consequence: Detriment can be established even without tangible physical or financial harm. The feeling of distress or upset can be sufficient if it is reasonably perceived as a disadvantage. An "unjustified sense of grievance" is not enough.
Examples of detriment: Courts and tribunals have found the following to amount to detriment:
Dress or appearance codes that offend religious/cultural norms or impose more onerous conditions on one sex.
Unjustified or excessive disciplinary action.
Failure to investigate or address grievances, including complaints of harassment or discrimination.
Making "exaggerated and distorted" complaints about a person, even if no action is taken.
Harassment, bullying, or other abuse not explicitly defined as statutory harassment.
Refusing services or imposing additional terms on contracts for goods/services.
Being deprived of a choice or excluded from an opportunity.
2. Less Favourable Treatment
The claimant must show they were treated less favourably than a real or hypothetical comparator.
Comparison is key - Generally, you must show you were treated worse than someone without your protected characteristic in similar circumstances.
Exceptions to the comparator requirement
Pregnancy and maternity discrimination - A formal comparator is not needed, as the position of a pregnant woman or new mother cannot be directly compared with that of a man.
Racial segregation - Deliberately segregating someone because of their race is inherently discriminatory, and no comparator is required.
"Actual disadvantage" is not required - It is sufficient that the claimant can reasonably say they would have preferred not to have been treated differently.
No offsetting - Less favourable treatment cannot be cancelled out by other, more favourable treatment. The "overall package" of treatment is not balanced.
Treatment must actually occur - It is not enough to argue that the respondent would have treated them less favourably; the treatment must have taken place.
3. Comparators
The concept of a comparator is central to proving less favourable treatment. The comparison must be "like with like," meaning "there must be no material difference between the circumstances" of the claimant and the comparator, apart from the existence of the protected characteristic.
Real or hypothetical - While a real comparator (an actual person) is ideal, it's often not possible. Tribunals can construct a "hypothetical comparator" with identical circumstances (except the protected characteristic) to determine how they would have been treated. "Evidential comparators" (actual people with some similar characteristics) can be used to infer treatment of a hypothetical comparator.
Relevant circumstances - Only those characteristics that the employer took into account when deciding how to treat the claimant (excluding the protected characteristic) are relevant for comparison. For example, in a promotion claim based on religious belief, the comparator must have the same experience and qualifications but different religious beliefs.
Discriminatory differences are ignored - Circumstances that are themselves discriminatory will not be factored into the comparator's circumstances. For example, the difference in state pension ages for men and women was considered discriminatory and therefore not a relevant circumstance in a sex discrimination case concerning free swimming pool access.
Specifics for certain characteristics
Disability - A comparator's abilities are specifically included as circumstances, so the comparator must have the same abilities but without the disability.
Sexual Orientation - Being in a civil partnership versus being married is not considered a material difference for comparison purposes.
Gender Reassignment - The sex of the comparator can be intrinsic. Recent Supreme Court commentary suggests that for a trans woman (male person undergoing gender reassignment), the correct comparator is likely a man without the protected characteristic of gender reassignment.
4. "Because of" a Protected Characteristic
The less favourable treatment must be "because of" a protected characteristic. This requires the court or tribunal to consider the reason why the claimant was treated less favourably.
Focus on the reason why - The central question is always, "why did the respondent treat the claimant in this way?".
Conscious or subconscious motivation - Direct discrimination is unlawful regardless of the discriminator's motive or intention. It is not necessary to prove conscious prejudice; subconscious (or unconscious) discrimination is also prohibited. However, the employer must have been aware of the protected characteristic for subconscious discrimination to apply. Tribunals are generally not required to separately consider subconscious discrimination unless there is evidence of stereotypical assumptions.
"Tainted information" - In situations where a decision-maker (X) acts innocently but relies on information from another person (Y) with a discriminatory motive, Y's action may be considered a separate discriminatory act for which the respondent can be vicariously liable, rather than making X's act discriminatory.
Protected characteristic as a significant influence - The discriminatory reason does not need to be the sole or even the principal reason for the less favourable treatment; it only needs to have had "a significant influence on the outcome" or be an "effective cause".
A discriminator's own protected characteristic is irrelevant - It is no defence that the alleged discriminator shares the same protected characteristic as the victim. For example, a Muslim employer can discriminate against a Muslim job applicant.
Advertising an intention to discriminate - Displaying a statement (e.g., in an advert) from which a reasonable person would infer discriminatory treatment is considered direct discrimination.
Defences and Exceptions
Generally, there is no justification defence available for direct discrimination, meaning a respondent cannot argue they had a good reason for the discriminatory treatment, except in specific circumstances related to age discrimination.
However, some exceptions or specific considerations exist:
Occupational requirement - Employers can discriminate in limited circumstances where having a protected characteristic is a genuine "occupational requirement" for the job.
Positive action - The EqA 2010 allows for "positive action" measures to address disadvantages faced by people with protected characteristics, which are not considered direct discrimination.
Special treatment for pregnancy/maternity - It is not direct discrimination to treat a woman more favourably in connection with pregnancy, childbirth, or maternity.
More favourable treatment for disabled persons - It is not direct discrimination to treat a disabled person more favourably than a non-disabled person.
Manifestation of religion or belief - In cases concerning the manifestation of a religion or belief, an employer may potentially justify their treatment if it was an "objectively justified response to the objectionable way" in which the belief was manifested.
Perceptive and Associative Discrimination
The EqA 2010 extends protection beyond the victim's own, actual protected characteristic.
Perceptive Discrimination - This occurs when B is treated less favourably because A (the discriminator) perceives (rightly or wrongly) that B has a particular protected characteristic. For example, an employer rejects a white job applicant with an African-sounding name because they wrongly believe the applicant is black. The Supreme Court has also clarified that a trans person perceived to be of their acquired gender can bring a direct sex discrimination claim.
Associative Discrimination - This occurs when B is treated less favourably because of the protected characteristic of someone else with whom B associates. A classic example is an employee treated unfavourably because they have a disabled child. This also covers cases where someone is treated less favourably due to association with a gay person, a lesbian couple, or even an informal staff network for disabled workers. An Employment Tribunal recently found direct discrimination where a claimant was treated less favourably due to his association with his wife who had stage 4 cancer.
Combined or Dual Discrimination was a new cause of action proposed in the EqA 2010 to allow claims based on a combination of two protected characteristics, but it has not yet been brought into force.
How Employment Law UK Supports Your Direct Discrimination Claim
Navigating these complex legal concepts requires strategic expertise and a deep understanding of the law and tribunal practice. At Employment Law UK we provide:
Specialised Expertise - We are particularly adept at handling disability discrimination (including neurodiversity like ADHD, Autism, PTSD), race discrimination, and sexual harassment claims. Viv Law fights for those who feel "unseen, unheard, or underestimated".
Strategic Case Preparation - We approach each case like a "game of chess," planning "three moves ahead" to devise layers of argumentation and tactics. This includes assisting with the drafting of a List of Issues for preliminary hearings, which is crucial for defining the scope of the dispute and guiding the proceedings.
Robust Drafting - We excel at crafting "beautifully written grievance letters and robust claims ET1 and responses ET3" that are clear, impactful, and designed for success in the Employment Tribunal.
Comprehensive Tribunal Support - While I do not litigate in court, we provide comprehensive assistance in preparing your claim for the Employment Tribunal, including guidance on preliminary hearings, case management orders, and the exchange of witness statements.
Problem Solving and Settlement Focus - Our aim is to achieve the best possible outcome for our clients, with a high success rate leading to financial settlement. A clear understanding of the issues can facilitate earlier settlement discussions.
Empathetic and Personalised Service - I offer dedicated, empathetic legal support, building trust by being available and consistently delivering meaningful work. We offer a free initial consultation to discuss your employment law claim.
Understanding direct discrimination is the first step toward addressing unfair treatment. With my expert guidance, you can ensure your case is prepared with precision and strategic insight.
