Direct Discrimination

26 October 2020

Discrimination at work is an important employment law issue to understand. Your business must treat employees in a consistent and fair way.

We can help you maintain employee rights—call us on 0800 028 2420 for support with your responsibilities as an employer.

You can also read this guide, which explores bias in the workplace and how you can avoid it.

What is direct discrimination?

It’s where someone is directly treated unfairly, or less favourably, because of their protected characteristic. The Equality Act 2010 outlines the law on discrimination and lists the protected characteristics.

When seeking to provide a clear, direct discrimination definition, it’s important to consider general discrimination. It occurs when someone treats an individual less favourably because of a specified protected characteristic.

It needs to be in comparison to others who don’t share this characteristic.

To define direct discrimination, you must know the protected characteristics. These are:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

This definition of direct discrimination is only true if you treat an employee less favourably to other staff members.

Direct discrimination examples

There are many examples of direct discrimination. It’s important to be familiar with them, to avoid situations of bias from taking place. Here are a few below:

  • A company advertises for a job. The employer refuses to recruit a woman over a man who is less qualified for the role. This is sex discrimination.
  • A team leader regularly puts down a disabled employee as they can’t perform certain tasks because of their disability. This is disability discrimination.
  • Management ignores the same employee’s complaint, with management treating the employee much more harshly than they treat their colleagues. This is victimisation.
  • An employee’s friend has surgery to change their gender and management stops inviting them to company events. This is gender reassignment discrimination by association.
  • Colleagues regularly bully an employee because of their nationality. Management doesn’t take reasonable action to stop this, despite being able to. This can be racial discrimination.
  • Management assumes an employee is Muslim, despite not knowing. They withhold a promotion opportunity for them because it involves selling wine. This is discrimination by perception.

All the above might be direct discrimination, meaning an employee can make a claim for an employment tribunal.

When seeking to prove direct discrimination, the claimant will need to show less favourable treatment compared to someone without their characteristic.

This doesn’t have to be anyone in particular. In certain circumstances, tribunals will assess a hypothetical comparator.

What is the difference between direct discrimination and indirect discrimination?

It relates to individual and group treatment. While direct discrimination is a direct action against one employee, indirect discrimination occurs when:

  • A provision, criterion or practice (PCP) applies to all employees, but the PCP disadvantages a group of people.
    • For example, a PCP affects all ages but affects people of one age group more when compared with persons of a different age group.
  • The PCP causes an individual employee a disadvantage.
  • The PCP isn’t justifiable as a, “proportionate means of achieving a legitimate aim”.

An example of indirect discrimination is:

  • A job advert asks for salespersons to have at least 10 years’ prior experience working in the sector. This is potentially indirect discrimination based on age because younger applicants can’t possess this experience.

Objective justification

This is the term given to a justification for a policy that’s normally discriminatory. If discrimination is justified, it doesn’t count as unlawful discrimination under the Equality Act 2010.

This is only if it’s a proportionate means of achieving a legitimate aim. Here are examples of legitimate aims:

  • The health & safety or welfare of individuals
  • Economic efficiency
  • Preventing fraud
  • Rewarding experience
  • Providing the best quality education

It must be proportionate and fairly balanced against any disadvantage of the discrimination. An example of this is:

  • If a job requires 10 years' experience, we can see it as discriminatory. A woman who took time off work to raise a child or a younger employee who can’t get that experience in time.
  • However, an employer can claim the position requires that level of experience to perform the job adequately.
  • They’ll need to justify why that length specifically and why it’s necessary to set it at 10 years.

If it’s found there are better and less discriminatory ways of doing things, it’ll be more difficult to justify discrimination regarding achieving a legitimate aim.

Risks associated with discrimination

You can subject employees to discrimination throughout their employment. From the second they click on a job advertisement right through to them leaving the company.

There’s no qualifying period to bring a claim for discrimination. If any of them wish to do so, they can from day one of their employment.

Successful claims can be highly damaging to your company. Tribunals can decide upon unlimited compensation awards, alongside an additional amount for the claimant’s injury.

To give you an idea of how costly this can get, they awarded a claimant £200,000 in November 2019. This was for a successful claim of age discrimination.

This means it’s crucial you avoid all forms of discrimination. Make sure you treat staff fairly and avoid instances of direct discrimination in the Equality Act 2010.

Need our help?

Ensure you don’t run the risk of costly discrimination claims and get in touch for expert advice: 0800 028 2420

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