Types of discrimination
What sorts of conduct may constitute unlawful discrimination?
There are four main types of discrimination identified in the Equality Act 2010:
Direct discrimination
Direct discrimination, which is essentially less favourable treatment because of a protected characteristic, is defined in section 13(1) of the Equality Act 2010:
“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.”
An essential idea is "less favourable treatment," which aims to ensure that someone with a certain protected characteristic is treated equally in comparison to someone who do not. This idea has given rise to a substantial amount of case law, most of which is concerned with determining who the proper "comparator" is.
To put it another way, a person (let's call him AB) who alleges direct discrimination must demonstrate that AB's protected characteristic caused A to be treated less favourably than a real person or a hypothetical person, in both situations. It goes without saying that there shouldn't be any significant differences between AB's circumstances and those of the real or hypothetical comparator. However, it isn't appropriate to envision a comparator who is a near-exact replica of AB, save for the protected characteristic, as you frequently can't separate a person's circumstances from their characteristic.
Various protected characteristics will need a focus on various facets of an individual. The abilities of the disabled person and the comparator, for instance, must not materially differ in a case of direct disability discrimination, whereas in a case of direct sexual orientation discrimination, the fact that one person is married to someone of the same sex and the comparator is married to someone of the opposite sex is not considered to be a material difference.
Positive discrimination
The Equality Act of 2010 refers to positive discrimination as "positive action," and it is a kind of direct discrimination that is not permitted. The only exception to this rule is where the goal is to remedy the impact of a pre-existing discriminatory disadvantage being endured by a group of people. Positive discrimination is a sort of direct discrimination. Positive action in recruiting is expressly addressed in Section 159 of the Equality Act of 2010, which was passed in 2010. It is relevant if you have a reasonable belief that:
persons who share a protected characteristic suffer a disadvantage connected to the characteristic
participation in an activity by persons who share a protected characteristic is disproportionately low
When this is the case, the employer is permitted to take certain actions with the intention of assisting or encouraging other individuals who share the protected characteristic to triumph over or lessen the impact of that disadvantage or to take part in the activity in question. This particular course of action is:
“treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.”
Positive action is only allowed, though, where three conditions are met. Using the same labels of A and B, the conditions are that:
A has the same qualifications as B in order to be hired.
You do not have a policy that allows you to favourably treat individuals who share the protected trait in relation to recruitment or promotion more so than those who do not have it.
Taking the positive action is "a proportionate means of achieving the aim of overcoming or minimising the disadvantage or participating in the activity." This suggests that if you take the action, you will be more likely to achieve your goal.
Employers are permitted to treat disabled people more positively than they treat those without disabilities; in certain cases, they are required to do so. For instance, a particular advertisement may focus on finding disabled individuals or may target disabled people by publishing the ad in a medium that is largely read by disabled people.
Indirect discrimination
When one person (let's call him A) applies to another person (we'll call him B) a provision, criteria, or practise (PCP) that is discriminatory in respect to a relevant protected characteristic that B possesses (such as her age, sex, disability, or religion), this is an example of indirect discrimination. Indirect discrimination happens when A applies a PCP that is discriminatory to B.
A PCP is indirectly discriminatory if:
A also applies it to persons with whom B does not share the characteristic;
the PCP puts persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom she does not share it;
it causes or would cause B to suffer that disadvantage; and
A cannot show the PCP to be a proportionate means of achieving a legitimate aim (called the ‘justification defence’)
A (somewhat absurd) example is the most effective way to demonstrate this point. Let's say that A is the owner of a business and that he or she publishes an advertising requesting people to apply for the position of production manager. However, he places a restriction on the kind of person he would recruit, stating that they must have a "deep, commanding voice" (thus using the PCP of voice pitch). The vast majority of women do not have a voice that is considered to be deep, which is often a trait associated with males. As a result, most women would be at a disadvantage when it came to PCP. Because B is a woman (and hence shares the protected trait of sex) and has a higher-pitched voice, it is likely that she will be at a disadvantage in the same way as the majority of the other women.
The rationale given by A is that he uses a deep voice himself and encourages his top managers to do the same because he believes it gives a "masterful and commanding impression to staff and clients." That's probably not a valid purpose, thus it's safe to say that A is discriminated against in respect to her sex in a roundabout way. Even if the goal were morally acceptable, A's proposed course of action (PCP) would not be an appropriate way to accomplish it.
Justification
As you have shown in the above paragraph, it is possible for there to be a justification for indirect discrimination if the PCP is a reasonable way of accomplishing a legitimate aim. Others have cited the maintenance of political, philosophical, or religious neutrality in a public-facing capacity, as well as maintaining a high level of personal service for customers, as a means of meeting the legitimate goal component of the justification test. However, the promotion of health and safety is especially well-suited to satisfy this component. It is possible for considerations of cost savings to constitute an acceptable purpose so long as they are not the only one (this strategy is known as the "cost plus" approach).
Be aware that it is not possible to justify direct discrimination, with the exception of the case of age discrimination. In the case of age discrimination, justification is available as a defence if the aim of the discriminatory measure relates to employment policy, the labour market, or vocational training, as opposed to purely individual reasons particular to the employee's situation.
A third form of discrimination against disabled people exists in addition to the direct and indirect forms. This form of discrimination is where you treat a disabled person unfavourably because of something arising in consequence of their disability, but it is possible to demonstrate that the treatment is a proportionate means of achieving a legitimate aim. In other words, it is possible to defend this kind of discrimination, which is referred to as section 15 discrimination based on disability.
Disability discrimination and reasonable adjustments
As well as being protected against direct and indirect discrimination, and from section 15 discrimination, an employer or prospective employer, must make reasonable adjustments where:
provisions, criteria or practices put a disabled person at a substantial disadvantage in relation to a relevant matter in comparison to people who are not disabled;
their premises have a physical feature that puts a disabled person at a substantial disadvantage;
their disabled employee will be put at a substantial disadvantage if they are not provided with an auxiliary aid
In a recruitment scenario, the duty to make reasonable adjustments extends to:
the formats and media in which advertisements are published (so, for example, they are machine- readable for visually impaired people, if requested);
the language used in written communications, such as job advertisements, job descriptions and person specifications application forms and tests (where fluency in English or high cognitive functioning is not required, the use of simpler English for people with learning difficulties should be used, for example);
the accessibility of premises for interviews; or
the environment and format in which the interview is to be held (so that people who are, say, neuro-divergent are not disadvantaged).
Of course, there are a near-infinite number of reasonable adjustments that could be made dependent on the nature of the disability and the circumstances, so you are not required to try to anticipate every possible situation in advance. However, job advertisements and application forms should carry a clear statement that reasonable adjustments will be made where the candidate indicates that it would be helpful or necessary.
Victimisation
Victimisation is defined in section 27 of the Equality Act 2010. It occurs when a person (A) subjects another person (B) to a detriment because B has done a ‘protected act’ or A believes that B has done or may do a protected act. A protected act is defined in the Equality Act 2010 as:
Bringing proceedings under the Equality Act 2010;
Giving evidence or information in connection with proceedings under the Equality Act 2010;
Doing any other thing for the purposes of or in connection with the Equality Act 2010; or
Making an allegation (whether or not express) that A or another person has contravened the Equality Act 2010.
Harassment
Harassment is defined in section 26 of the Equality Act 2010. It can be summarised as follows (conflating subsections (1) and (2)):
“A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic, or of unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”
There is an additional definition in subsection (3) relating to less favourable treatment where B rejects or submits to unwanted conduct of a sexual nature or that is related to gender reassignment or sex, and A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
Accordingly, if an employer who was hiring for a beauty consultant in a salon were to humiliate someone during a job interview because the individual had a facial disfigurement, for example (a facial disfigurement having the potential to amount to a disability in accordance with the Equality Act of 2010), this could be considered unlawful harassment. Another example of this would be a scenario in which a potential employee turned down a sexual approach made by an interviewer and was therefore denied employment as a result.
