Direct Discrimination

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.  

Defences to direct discrimination?

There is no defence to direct discrimination except in relation to 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).