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Direct discrimination

Direct discrimination

Direct discrimination occurs where a person is treated less favourably because of one or more of that person’s Protected Characteristics and that person suffers a detriment.

In other words, direct discrimination occurs where someone is put at a disadvantage on discriminatory grounds in relation to his/her employment. This may occur even when unintentional. Detriment means treatment of a kind that a reasonable person would or might take the view that in all the circumstances s/he had been disadvantaged. An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.

For the purposes of establishing direct discrimination, it does not matter whether or not the discriminator has the Protected Characteristic in question. Therefore, it is no defence to a direct discrimination claim that the alleged discriminator shares the same Protected Characteristic of the victim.

Direct discrimination cannot be justified (see ‘Exceptions’ below).

Examples of direct discrimination

  • A woman with young children fails to obtain a job because it is feared that she might be an unreliable member of staff.
  • An employer believes that someone’s memory deteriorates with age. He assumes wrongly that a 60 year old manager in his team can no longer be relied on to undertake her role competently. An opportunity for promotion arises which he does not mention to the manager. The employer’s conduct is influenced by a stereotyped view of the competence of 60 year olds.
  • A Pakistani applicant for a senior post is not appointed because he might not “fit in” with the existing (all white) team.
  • During an interview, a job applicant informs the employer that he has multiple sclerosis. The applicant is unsuccessful and the employer offers the job to someone who does not have a disability on the assumption that the disabled job applicant cannot carry out the job.
  • Whilst being interviewed, a job applicant says that she has a civil partner. Although she has all the skills and competencies required of the jobholder and performs exceptionally well at interview, the company decides not to offer her the job because she is a lesbian.
  • A Catholic employer refuses to employ a worker because she is not Catholic.

Exceptions

If the Protected Characteristic is age, a person will not be discriminated against if the discriminator can show that the less favourable treatment is a proportionate means of achieving a legitimate aim.

If the Protected Characteristic is disability, and the complainant is not a disabled person, direct disability discrimination does not occur if the alleged perpetrator treats disabled persons more favourably than persons not disabled.

If the Protected Characteristic is marriage and civil partnership, less favourable treatment occurs only if the complainant is married or is a civil partner.

If the Protected Characteristic is race, less favourable treatment includes segregating the complainant from others

If the Protected Characteristic is sex, less favourable treatment of a woman includes less favourable treatment of her because she is breastfeeding; and in the case where the complainant is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.

Have you been discriminated against?

If you need more advice, please do get in touch with us by calling 03456 381381 or emailing enquiries@ibblaw.co.uk.

Marc Jones

Marc Jones

Partner marc.jones@ibblaw.co.uk 01895 201719