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.  

Example of Direct Discrimination 

An example of direct discrimination would be:

A club that organises salsa evenings deletes a woman from their list as soon as they learn that she is pregnant, on the assumption that during her pregnancy she will not want to come to salsa evenings. This decision, resulting in unfavourable treatment based on a stereotype, is likely to be pregnancy discrimination.

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).

Case Law

Bull v Hall [2013] UKSC 73,

The Supreme Court found that the owners of a hotel in Cornwall had directly discriminated against a gay couple who were in a civil partnership. On the basis of their Christian belief that sex outside marriage was sinful, they had refused to allow the couple to share a double room.

The Supreme Court stated that the status of those in a civil partnership (at that time in 2008) was indissociable from their sexual orientation and therefore this represented a form of direct discrimination based on sexuality. In addition a further claim of indirect discrimination, which was not justified, was accepted by the court.

Lee v Ashers Baking Company [2018] UKSC 49

The case centred on the refusal of the owners of the bakery, based on their Christian beliefs, to make a cake for the claimant with a message in icing on it, reading: “Support gay marriage”.

Mr Lee, who is gay, brought an action for discrimination, based on a number of regulations, which are equivalent to the obligations contained in the Equality Act.

The Supreme Court upheld the company’s appeal. Lady Hale stated that the message was not indissociable from Lee’s sexuality, unlike the situation in Bull. The objection was to the message on the cake and not to any characteristics of the messenger. Anyone who had asked for such a cake, regardless of their sexual orientation, would have been treated similarly. The message could be and was supported not just by gay people, but also by their families and by those in the wider community who recognise the social benefits of the commitment to marriage. (Note that this was also against the background of the fact that the bakery both employed and served gay people.)