Direct Discrimination
Equality Act 2010
General common law rule: an employer is free to offer employment to whomever he chooses
(Allen v Flood and Taylor 1898). HOWEVER, this common law freedom has been restricted
by statute.
STEP 1: IS THE CLAIMANT ELIGIBLE TO BRING A CLAIM?
• The Act protects, amongst others:
» Employees (s39)
» Employees after their employment has ended (s108)
» Job applicants (s39).
» Contract workers (s41)
» Office holders (s50)
» Trade union members (s57)
» Employees whose employment has ended (s108).
s83(2): defines ‘Employment’ as “employment under a contract of employment, a contract of
apprenticeship or a contract personally to do work”
**No length of service requirement
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”
(123(1)(b))
, STEP 2: IDENTIFY THE RELEVANT PROTECTED CHARACTERISTIC
s4 sets out the certain ‘protected’ characteristics:
Age (s5); ¾ The Explanatory Notes give the following examples:
• An age group would include ‘over fifties’ or twenty-one year olds.
• A person aged twenty-one does not share the same characteristic of age with ‘people in their forties’.
However, a person aged twenty-one and people in their forties can share the characteristic of being in
the ‘under fifty’ age range.
Disability (s6 and Sch ¾ Unless the parties agree that a claimant is a disabled person at the relevant time, the burden of proof is on the
1); claimant to show that they were a disabled person.
¾ A person has a disability, therefore, if he has:
• a physical or mental impairment, which has
• a substantial and
• long-term adverse effect on his ability to carry out
• normal day-to-day activities (s 6(1))
¾ A ‘disabled person’ means a person who has a disability (s 6(2))
Gender reassignment ¾ I.e. someone who is proposing to undergo, has undergone, or is undergoing gender reassignment
(s7); ¾ There is NO requirement of being under medical supervision
*8.2.5
Marriage and civil ¾ DOES NOT include those who are single and cohabiting
partnership (s8); *8.2.6 ¾ The Explanatory Note gives examples:
§ A person who is engaged to be married is not married and therefore does not have this protected
characteristic.
§ A divorcee or a person whose civil partnership has been dissolved is not married or in a civil
partnership and therefore does not have this protected characteristic.
Pregnancy and ¾ Protects a woman from discrimination because of her current or a previous pregnancy
maternity (s18); ¾ Protects her from maternity discrimination, which includes treating her unfavourably because she is breast-
feeding, for 26 weeks after giving birth, and provides that pregnancy or maternity discrimination as defined
cannot be treated as sex discrimination
Race (s9); ¾ Includes “colour”, “nationality, “ethnic or national origins” (s9(1)(a)-(b))
*8.2.2
¾ The Explanatory Note gives the following examples:
§ Colour includes being black or white
§ Nationality includes being a British, Australian or Swiss citizen
§ Ethnic or national origins include being from a Roma background or of Chinese heritage
§ A racial group could be ‘black Britons’ which would encompass those people who are both black and
who are British citizens
Religion of belief (s10); ¾ Includes reference to a “lack of belief” (s10(2))
*8.2.3 ¾ Includes “philosophical beliefs” (s10(2)) e.g. belief action is urgently needed to address climate change
(Nicholson v Grainger plc [2010] IRLR 4)
¾ Jews may also constitute a racial group under the definition in s9
¾ The Explanatory Note states that the criteria for determining what constitutes a ‘philosophical belief’ are that it
must:
• Be genuinely held;
• Be a belief and not an opinion or a viewpoint based on the present state of information available;
• Be a belief as to a weighty and substantial aspect of human life and behaviour;
• Attain a certain level of cogency, seriousness, cohesion and importance; and
• Be worthy of respect in a democratic society, compatible with human dignity and not conflict with the
fundamental rights of others
¾ Can include political beliefs (Olivier v DWP (ET/1701407/13))
¾ 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); ¾ A reference to a person who has a particular protected characteristic is a reference to a man or to a woman;
*8.2.1 ¾ A reference to persons who share a protected characteristic is a reference to persons of the same sex
Sexual orientation ¾ The Explanatory Note gives the following examples:
(s12) • A man who experiences sexual attraction towards both men and women is ‘bisexual’ in terms of sexual
*8.2.4 orientation even if he has only had relationships with women
• A man and a women who are both attracted only to people of the opposite sex from them share a sexual
orientation
• A man who is attracted only to other men is a gay man
• A woman who is attracted only to other women is a lesbian.
Equality Act 2010
General common law rule: an employer is free to offer employment to whomever he chooses
(Allen v Flood and Taylor 1898). HOWEVER, this common law freedom has been restricted
by statute.
STEP 1: IS THE CLAIMANT ELIGIBLE TO BRING A CLAIM?
• The Act protects, amongst others:
» Employees (s39)
» Employees after their employment has ended (s108)
» Job applicants (s39).
» Contract workers (s41)
» Office holders (s50)
» Trade union members (s57)
» Employees whose employment has ended (s108).
s83(2): defines ‘Employment’ as “employment under a contract of employment, a contract of
apprenticeship or a contract personally to do work”
**No length of service requirement
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”
(123(1)(b))
, STEP 2: IDENTIFY THE RELEVANT PROTECTED CHARACTERISTIC
s4 sets out the certain ‘protected’ characteristics:
Age (s5); ¾ The Explanatory Notes give the following examples:
• An age group would include ‘over fifties’ or twenty-one year olds.
• A person aged twenty-one does not share the same characteristic of age with ‘people in their forties’.
However, a person aged twenty-one and people in their forties can share the characteristic of being in
the ‘under fifty’ age range.
Disability (s6 and Sch ¾ Unless the parties agree that a claimant is a disabled person at the relevant time, the burden of proof is on the
1); claimant to show that they were a disabled person.
¾ A person has a disability, therefore, if he has:
• a physical or mental impairment, which has
• a substantial and
• long-term adverse effect on his ability to carry out
• normal day-to-day activities (s 6(1))
¾ A ‘disabled person’ means a person who has a disability (s 6(2))
Gender reassignment ¾ I.e. someone who is proposing to undergo, has undergone, or is undergoing gender reassignment
(s7); ¾ There is NO requirement of being under medical supervision
*8.2.5
Marriage and civil ¾ DOES NOT include those who are single and cohabiting
partnership (s8); *8.2.6 ¾ The Explanatory Note gives examples:
§ A person who is engaged to be married is not married and therefore does not have this protected
characteristic.
§ A divorcee or a person whose civil partnership has been dissolved is not married or in a civil
partnership and therefore does not have this protected characteristic.
Pregnancy and ¾ Protects a woman from discrimination because of her current or a previous pregnancy
maternity (s18); ¾ Protects her from maternity discrimination, which includes treating her unfavourably because she is breast-
feeding, for 26 weeks after giving birth, and provides that pregnancy or maternity discrimination as defined
cannot be treated as sex discrimination
Race (s9); ¾ Includes “colour”, “nationality, “ethnic or national origins” (s9(1)(a)-(b))
*8.2.2
¾ The Explanatory Note gives the following examples:
§ Colour includes being black or white
§ Nationality includes being a British, Australian or Swiss citizen
§ Ethnic or national origins include being from a Roma background or of Chinese heritage
§ A racial group could be ‘black Britons’ which would encompass those people who are both black and
who are British citizens
Religion of belief (s10); ¾ Includes reference to a “lack of belief” (s10(2))
*8.2.3 ¾ Includes “philosophical beliefs” (s10(2)) e.g. belief action is urgently needed to address climate change
(Nicholson v Grainger plc [2010] IRLR 4)
¾ Jews may also constitute a racial group under the definition in s9
¾ The Explanatory Note states that the criteria for determining what constitutes a ‘philosophical belief’ are that it
must:
• Be genuinely held;
• Be a belief and not an opinion or a viewpoint based on the present state of information available;
• Be a belief as to a weighty and substantial aspect of human life and behaviour;
• Attain a certain level of cogency, seriousness, cohesion and importance; and
• Be worthy of respect in a democratic society, compatible with human dignity and not conflict with the
fundamental rights of others
¾ Can include political beliefs (Olivier v DWP (ET/1701407/13))
¾ 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); ¾ A reference to a person who has a particular protected characteristic is a reference to a man or to a woman;
*8.2.1 ¾ A reference to persons who share a protected characteristic is a reference to persons of the same sex
Sexual orientation ¾ The Explanatory Note gives the following examples:
(s12) • A man who experiences sexual attraction towards both men and women is ‘bisexual’ in terms of sexual
*8.2.4 orientation even if he has only had relationships with women
• A man and a women who are both attracted only to people of the opposite sex from them share a sexual
orientation
• A man who is attracted only to other men is a gay man
• A woman who is attracted only to other women is a lesbian.
