DIRECT DISCRIMINATION
HOW TO ANSWER DISRECT DISCRIMINATION FLOWCHART IN WORKSHOP
Is the Claimant Eligible to THE EQUALITY ACT 2010
bring a Claim? The Act protects both “workers” and “employees” (S39):
o Employees (s39)
s83(2): defines ‘Employment’ as “employment under a contract of
employment, a contract of apprenticeship or a contract
personally to do work”.
o Job applicants (s39).
o Contract workers (s41)
o Office holders (s50)
o Trade union members (s57)
o Employees whose employment has ended (s108).
No length of service requirement.
S13(1) direct A person (A) discriminates against another (B) if, because of a protected
discrimination characteristic, A treats B less favourably than A treats or would treat others
The wording of the definition of ‘direct discrimination’ in the Act is wide enough to
cover both associative and perceptive discrimination.
Perceptive discrimination: discrimination against an individual because
others think (wrongly) that they possess a particular protected
characteristic.
Time Limit 3 months (LESS A DAY) from the date of the unlawful act (s123(1)).
The Tribunal has discretion to extend the time period if it thinks it “just and equitable”
S(123(1)(b)).
Territorial Jurisdiction EHRC Code states that discrimination protection is required where there is a
sufficiently close link between the employment relationship and Great Britain.
(Clyde & Co LLP and Another v Bates [2012])- notes the Secro v Lawson test be
applied in that situation
(ie where the person lives and/or works for at least part of the time in Great Britain) is
whether an individual has a sufficiently strong connection with Great Britain. By
contrast, in cases where the individual works wholly abroad, a comparative exercise
will be appropriate (ie connections with Great Britain will need to outweigh
connections with the other jurisdiction).
What is the relevant S4 Equality Act 2010:
Protected Characteristic? Age (s5)
Gender reassignment (s7).
o I.e. someone who is proposing to undergo, has undergone, or is
undergoing gender reassignment.
o Includes transsexuals (s7(2)) [someone who identifies as belonging to
the opposite sex] “a reference to a transsexual person is a reference to a
person who has the protected characteristic of gender reassignment”.
Marriage and civil partnership (s8).
o Is married or is a civil partner
Race (s9)
o Includes (a)“colour”, (b)“nationality, (c)“ethnic or national origins” (s9(1)
(a)-(b)).
o Includes “ethnic group” which has two essential characteristics (a) a long
shared history and (b) a cultural transition of its own” e.g Sikh’s, gypsies,
not Rastafarians (Mandla and Another v Dowell Lee and Another [1983)
o Immigration status does not equate to nationality (Taiwo and Onu v
Olaigbe and Akwiwu [2016])
Religion or belief (s10).
o Includes reference to a “lack of belief” (s10(2)).
o Includes “philosophical beliefs” (s10(2)) e.g. belief action is urgently
needed to address climate change (Nicholson v Grainger plc [2010] IRLR
, 4).
o Can include political beliefs (Olivier v DWP (ET/1701407/13)
o If an employee genuinely believes their faith requires a particular course
of action, that is sufficient to make it part of their religion (Hussain v
Bhullar Bros (ET/1806638/04).
Sex (s11).
o (a)Includes where claimant is a man or woman
o (b)Where persons share that protected characteristic.
Sexual orientation (s12).
(1) Sexual orientation means a person’s sexual orientation toward:
a) persons of the same sex,
b) persons of the opposite sex
c) or persons of either sex.
(2) In relation to the protected characteristic of sexual orientation
(a) a reference to a person who has a particular protected characteristic is a
reference to a person who is of a particular sexual orientation
(b) a reference to persons who share a protected characteristic is a reference to
persons who are of the same sexual orientation.
Pregnancy and maternity (s18).
Disability (s6)
Trade Union Membership
Part-time worker
Fixed (limited) term work
Has there been a s39 defines the following unlawful acts:
potentially Unlawful Act?
s39(1): Where an employer (A) discriminates against a person [includes job
(s39) applicants] (B):
o (a) in the arrangements for deciding to whom to offer employment.
o (b) as to the terms on which A offers B employment;
o (c) by not offering B employment.
S39(2): Where an employer (A) discriminates against an employee (B):
o (a) as to B’s terms of employment.
o (b) in the way A affords B access, or by not affording B access, to
opportunities for promotion, transfer or training or for receiving any
other benefit, facility or service.
o (c) by dismissing B.
Includes constructive dismissal (s39(7)).
o (d) by subjecting B to any other detriment.
s108: A person (A) must not discriminate against another (B) if:
o The discrimination arises out of and is closely connected to a
relationship which used to exist between them.
o Conduct of a description constituting the discrimination would, if it
occurred during the relationship, contravene this Act.
Did the employer treat the Identify the comparator:
claimant “less favourably” o Can be actual or hypothetical.
than they would treat a o I.e. someone who does not share the same protected characteristic,
comparator because of a but who must be in not materially different circumstances from the
protected characteristic? claimant
Less Favourable Treatment?
o Broadly defined: covers any “disadvantage” (Jeremiah v Ministry of
Defence [1979] IRLR 436).
o Does not require tangible loss (Chief Constable of West Yorkshire Police
v Khan [2001])
o All C need show is that he “could reasonably say that he would have
preferred not to have been treated differently in this way”.
, It was therefore no defence to an employer who refused to give a
reference, allegedly for racially discriminatory reasons, to argue
that the claimant was better off without a reference, because any
such reference would have been unfavourable (Chief Constable
of West Yorkshire Police v Khan [2001] IRLR 830)
Because of the Protected Characteristic?
o Tribunal must ask what the “conscious or subconscious reason for
treating the claimant less favourably was”.
o The reason need not be the sole or main reason, as long as it had a
significant influence on the outcome (Nagarajan v London Regional
Transport [1999] IRLR 57).
o What is important is to discover what caused someone to act as he
did, as opposed to a consideration of that person’s motive, intention etc.
o I.e. consider evidential factors for and against the Claimant:
Difference in status and treatment indicates only a possibility of
discrimination.
Is there a potential explanation for the treatment which is not
discriminatory?
E.g.:
Experience – both length of and relevance to the job
role.
Qualifications
Disciplinary records
Attendance records.
Particular suitability for the job role e.g. enthusiasm etc.
Need to know a sufficient amount about the employee and
comparator to assess this.
How does the employer treat people generally with the protected
characteristics?
Historic instances of discrimination?
How have complaints been handled?
Burden of Proof
Burden of Proof s136: Tribunal must make a finding of unlawful discrimination if:
o C can establish facts from which the tribunal can decide there has been a
contravention of the Act UNLESS
o The employer shows it did not contravene the provision.
o Section 24 of the Act provides that it is no defence to a claim of
direct discrimination that the alleged discriminator shares the
protected characteristic with the victim. The discriminator will still
be liable for any unlawful discrimination
This means that:
o Burden of proof is on the Claimant to show facts from which a tribunal
can conclude that there has been discrimination in absence of an
explanation.
o Burden of proof then shifts to the Defendant to show that he did not
breach the act i.e. there was an alternative explanation for the conduct.
o (Igen Ltd and Others v Wong [2005] IRLR 258).
Defence to Age AGE DISCRIMINATION ONLY can be justified where the discrimination is a
Discrimination? ‘proportionate means of achieving legitimate aim’ (s13(2)).
s13(2) o Legitimate Aim?
Seldon v Clarkson Wright & Jakes (A Partnership) [2012] UKSC
16: must be a “public interest aim” rather than individual aims
being pursued by the business). Narrower than the test for
justifying indirect discrimination.
o Proportionate?
The measure must be “appropriate and necessary means of
HOW TO ANSWER DISRECT DISCRIMINATION FLOWCHART IN WORKSHOP
Is the Claimant Eligible to THE EQUALITY ACT 2010
bring a Claim? The Act protects both “workers” and “employees” (S39):
o Employees (s39)
s83(2): defines ‘Employment’ as “employment under a contract of
employment, a contract of apprenticeship or a contract
personally to do work”.
o Job applicants (s39).
o Contract workers (s41)
o Office holders (s50)
o Trade union members (s57)
o Employees whose employment has ended (s108).
No length of service requirement.
S13(1) direct A person (A) discriminates against another (B) if, because of a protected
discrimination characteristic, A treats B less favourably than A treats or would treat others
The wording of the definition of ‘direct discrimination’ in the Act is wide enough to
cover both associative and perceptive discrimination.
Perceptive discrimination: discrimination against an individual because
others think (wrongly) that they possess a particular protected
characteristic.
Time Limit 3 months (LESS A DAY) from the date of the unlawful act (s123(1)).
The Tribunal has discretion to extend the time period if it thinks it “just and equitable”
S(123(1)(b)).
Territorial Jurisdiction EHRC Code states that discrimination protection is required where there is a
sufficiently close link between the employment relationship and Great Britain.
(Clyde & Co LLP and Another v Bates [2012])- notes the Secro v Lawson test be
applied in that situation
(ie where the person lives and/or works for at least part of the time in Great Britain) is
whether an individual has a sufficiently strong connection with Great Britain. By
contrast, in cases where the individual works wholly abroad, a comparative exercise
will be appropriate (ie connections with Great Britain will need to outweigh
connections with the other jurisdiction).
What is the relevant S4 Equality Act 2010:
Protected Characteristic? Age (s5)
Gender reassignment (s7).
o I.e. someone who is proposing to undergo, has undergone, or is
undergoing gender reassignment.
o Includes transsexuals (s7(2)) [someone who identifies as belonging to
the opposite sex] “a reference to a transsexual person is a reference to a
person who has the protected characteristic of gender reassignment”.
Marriage and civil partnership (s8).
o Is married or is a civil partner
Race (s9)
o Includes (a)“colour”, (b)“nationality, (c)“ethnic or national origins” (s9(1)
(a)-(b)).
o Includes “ethnic group” which has two essential characteristics (a) a long
shared history and (b) a cultural transition of its own” e.g Sikh’s, gypsies,
not Rastafarians (Mandla and Another v Dowell Lee and Another [1983)
o Immigration status does not equate to nationality (Taiwo and Onu v
Olaigbe and Akwiwu [2016])
Religion or belief (s10).
o Includes reference to a “lack of belief” (s10(2)).
o Includes “philosophical beliefs” (s10(2)) e.g. belief action is urgently
needed to address climate change (Nicholson v Grainger plc [2010] IRLR
, 4).
o Can include political beliefs (Olivier v DWP (ET/1701407/13)
o If an employee genuinely believes their faith requires a particular course
of action, that is sufficient to make it part of their religion (Hussain v
Bhullar Bros (ET/1806638/04).
Sex (s11).
o (a)Includes where claimant is a man or woman
o (b)Where persons share that protected characteristic.
Sexual orientation (s12).
(1) Sexual orientation means a person’s sexual orientation toward:
a) persons of the same sex,
b) persons of the opposite sex
c) or persons of either sex.
(2) In relation to the protected characteristic of sexual orientation
(a) a reference to a person who has a particular protected characteristic is a
reference to a person who is of a particular sexual orientation
(b) a reference to persons who share a protected characteristic is a reference to
persons who are of the same sexual orientation.
Pregnancy and maternity (s18).
Disability (s6)
Trade Union Membership
Part-time worker
Fixed (limited) term work
Has there been a s39 defines the following unlawful acts:
potentially Unlawful Act?
s39(1): Where an employer (A) discriminates against a person [includes job
(s39) applicants] (B):
o (a) in the arrangements for deciding to whom to offer employment.
o (b) as to the terms on which A offers B employment;
o (c) by not offering B employment.
S39(2): Where an employer (A) discriminates against an employee (B):
o (a) as to B’s terms of employment.
o (b) in the way A affords B access, or by not affording B access, to
opportunities for promotion, transfer or training or for receiving any
other benefit, facility or service.
o (c) by dismissing B.
Includes constructive dismissal (s39(7)).
o (d) by subjecting B to any other detriment.
s108: A person (A) must not discriminate against another (B) if:
o The discrimination arises out of and is closely connected to a
relationship which used to exist between them.
o Conduct of a description constituting the discrimination would, if it
occurred during the relationship, contravene this Act.
Did the employer treat the Identify the comparator:
claimant “less favourably” o Can be actual or hypothetical.
than they would treat a o I.e. someone who does not share the same protected characteristic,
comparator because of a but who must be in not materially different circumstances from the
protected characteristic? claimant
Less Favourable Treatment?
o Broadly defined: covers any “disadvantage” (Jeremiah v Ministry of
Defence [1979] IRLR 436).
o Does not require tangible loss (Chief Constable of West Yorkshire Police
v Khan [2001])
o All C need show is that he “could reasonably say that he would have
preferred not to have been treated differently in this way”.
, It was therefore no defence to an employer who refused to give a
reference, allegedly for racially discriminatory reasons, to argue
that the claimant was better off without a reference, because any
such reference would have been unfavourable (Chief Constable
of West Yorkshire Police v Khan [2001] IRLR 830)
Because of the Protected Characteristic?
o Tribunal must ask what the “conscious or subconscious reason for
treating the claimant less favourably was”.
o The reason need not be the sole or main reason, as long as it had a
significant influence on the outcome (Nagarajan v London Regional
Transport [1999] IRLR 57).
o What is important is to discover what caused someone to act as he
did, as opposed to a consideration of that person’s motive, intention etc.
o I.e. consider evidential factors for and against the Claimant:
Difference in status and treatment indicates only a possibility of
discrimination.
Is there a potential explanation for the treatment which is not
discriminatory?
E.g.:
Experience – both length of and relevance to the job
role.
Qualifications
Disciplinary records
Attendance records.
Particular suitability for the job role e.g. enthusiasm etc.
Need to know a sufficient amount about the employee and
comparator to assess this.
How does the employer treat people generally with the protected
characteristics?
Historic instances of discrimination?
How have complaints been handled?
Burden of Proof
Burden of Proof s136: Tribunal must make a finding of unlawful discrimination if:
o C can establish facts from which the tribunal can decide there has been a
contravention of the Act UNLESS
o The employer shows it did not contravene the provision.
o Section 24 of the Act provides that it is no defence to a claim of
direct discrimination that the alleged discriminator shares the
protected characteristic with the victim. The discriminator will still
be liable for any unlawful discrimination
This means that:
o Burden of proof is on the Claimant to show facts from which a tribunal
can conclude that there has been discrimination in absence of an
explanation.
o Burden of proof then shifts to the Defendant to show that he did not
breach the act i.e. there was an alternative explanation for the conduct.
o (Igen Ltd and Others v Wong [2005] IRLR 258).
Defence to Age AGE DISCRIMINATION ONLY can be justified where the discrimination is a
Discrimination? ‘proportionate means of achieving legitimate aim’ (s13(2)).
s13(2) o Legitimate Aim?
Seldon v Clarkson Wright & Jakes (A Partnership) [2012] UKSC
16: must be a “public interest aim” rather than individual aims
being pursued by the business). Narrower than the test for
justifying indirect discrimination.
o Proportionate?
The measure must be “appropriate and necessary means of
