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Direct Discrimination with Case References

All of us have heard about Direct discrimination at workplace. Most of us, however, fail to recognise if we are subjected to direct discrimination and take steps against it.

All forms of discrimination, in which your employer treats you differently or less favourably because of who you are, qualify as direct discrimination.

According to the employment law, such behaviour is unlawful, and you can challenge direct discrimination in an employment tribunal.

Let us take a look at some case references, in which an employee has reported a case of direct discrimination.

Some Key Points About Direct Discrimination

  • If you are claiming direct discrimination, you must show that you have been treated less favourably than a comparator (both real and hypothetical). Cases of maternity discrimination and racial segregation, however, are exceptions.
  • The discrimination must be because of a protected characteristic (these include age, gender reassignment, religion or belief, race, sex, marriage and civil partnership, sexual orientation, pregnancy and maternity, and disability).
  • In case, you are incorrectly perceived to have a protected characteristic (all except marriage or civil partnership) and suffer discrimination because of that, you are still entitled to file a claim. For example, if an employee of Asian origin experiences less favourable treatment because their employer mistakenly believed that they are Muslim, he or she might have a direct religious discrimination claim.
  • It is not direct discrimination to treat an employee with disability more favourably than an employee who is of sound health. Similarly, if an employer gives special treatment to a pregnant female employee, it is not direct discrimination towards other female employees.
  • You cannot objectively justify direct discrimination, except when it is in relation to age (a protected characteristic).

Less Favourable Treatment

To establish direct discrimination, you must show that you have been treated less favourably or puts you at a clear disadvantage at work, in some way than a comparator.

Such treatment could also involve being excluded from opportunity or deprived of a choice (paragraph 3.4, EHRC Employment Code). You do not have to suffer actual disadvantage (economic or otherwise) for the workplace treatment to be less favourable.

Example: Less Favourable Treatment that Does not Have Actual Disadvantage

A female employee’s appraisal duties are withdrawn while the male employees at the same grade continued to carry out appraisals. Although she did not suffer demotion or any financial disadvantage, she did feel demeaned in the eyes of her peers and junior staff.

The removal of appraisal duties might be a way to treat her less favourably than other employees. Furthermore, if this treatment is due to her sex, this would classify as direct discrimination. (under Paragraph 3.5, EHRC Employment Code.)

Different Treatment Not Necessarily Enough to Qualify as Discrimination

Often, it is easy to show less favourable treatment.

In Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065, an employer refused to give a reference to its former employee, Mr Khan. As a result, Mr Khan claimed that this action qualified as racial discrimination.

The employer, however, responded by saying that any reference would have been unfavourable, and therefore, Mr Khan was better off without it.

To this, the House of Lords ruled that the tribunal did not have to necessarily decide whether not having a reference could ultimately damage Mr Khan’s credibility as an employee. Therefore, we can see that merely treating two people differently does not mean that one of them has received a lesser favourable treatment.

No Offsetting Allowed

Less favourable treatment cannot be just “cancelled out” by indemnifying another, more favourable treatment. You cannot ask an employee tribunal to balance the overall “package” treatment at the workplace meted out to you and any comparators.

Examples: Offsetting Less Favourable Treatment

An overtime scheme did require male employees to do less congenial overtime work than female employees. This treatment was discriminatory against the male workforce even though they got a higher overtime rate in return. (Ministry of Defence v Jeremiah [1980] ICR 13).

In another example, a saleswoman informs her employer that she wishes to spend her remaining life living as a man. Because of this, she is demoted to a job role that did not involve client contact but her salary increases. Despite the increment in pay, the demotion will be considered as less favourable treatment (due to gender reassignment. (Paragraph 3.6, EHRC Employment Code.)