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Direct discrimination

What is direct discrimination?

Section 13 of the Equality Act 2010 says that direct discrimination is where your employer treats you less favourably than they treat others at work because of your protected characteristic. Less favourable treatment means you have been treated differently to someone else who doesn’t have your protected characteristic and you’re worse off because of it.  Section 24 says that it is irrelevant who the person discriminating against you is, so a person cannot say that they could not possibly have discriminated against you because they also have your protected characteristic. Being treated less favourably on its own will not amount to direct discrimination. If your employer is able to show that they would have treated all workers just as badly, then there will have been no less favourable treatment and so, no direct discrimination. Because of this you need to compare yourself to an actual or hypothetical comparator.

There are two other types of direct discrimination;

  • Discrimination by association
  • Discrimination by perception.

[see Proving Discrimination, The Comparator in Direct Discrimination, Direct Discrimination, Indirect Discrimination, Victimisation, Harassment]

 Discrimination by association

Discrimination by association is direct discrimination against someone because they are associated with another person who has a protected characteristic. Here a person is treated less favourably;

  • because of a protected characteristic, but
  • they don’t personally have the relevant protected characteristic
  • a relevant third party (to whom they are connected) has the protected characteristic.

Discrimination by association covers all the protected characteristics except pregnancy, maternity, marital status and civil partnership. An example is where you are discriminated against because you need to take time of work to take care of a disabled person who depends on you. EBR Attridge Law LLP (formerly Attridge Law) and Anor v Coleman [2010]  is an example of associative direct discrimination and harassment under the old Disability Discrimination Act 1996. Sharon Coleman’s son Oliver was born with a rare condition affecting his breathing and he also has a hearing impairment. Ms Coleman’s case was that she was forced to resign from her job as a legal secretary after being harassed by her employers and being refused flexible working which other employees were granted.  She said she was targeted because she has a child with a disability, and was denied flexible work arrangements offered to her colleagues without disabled children.

Since Ms Coleman’s case relied on the application of European law (European Employment Framework Directive 2000/78/EC) to the Disability Discrimination Act, before deciding on the facts of her claim, the Employment Tribunal first asked the European Court of Justice (ECJ) to determine whether the Directive protects employees who are treated less favourably or harassed because of their association with a disabled person. In July 2008, the ECJ ruled that disability discrimination by association is unlawful in the workplace.

Ms Coleman’s case went back to the Employment Tribunal which agreed with the ECJ. The Tribunal said that it is unlawful for employees to be treated less favourably or harassed because of their association with a disabled person.

There is no discrimination by association in indirect discrimination and it doesn’t impose a duty on the employer to make reasonable adjustments for employees who are associated with a disabled person. This was emphasised by the Court of Appeal in the case of Hainsworth v Ministry of Defence [2014]. Ms Hainsworth was a civilian member of the British armed forces, based in Germany. She was not disabled, but her 17 year-old daughter had Down’s syndrome. Ms Hainsworth wanted to transfer to the UK so that her daughter could access specialist education and training facilities. The Ministry of Defence refused the request. Ms Hainsworth claimed that the refusal was a breach of her employer’s duty to make reasonable adjustments under the Equality Act and amounted to disability discrimination. The Court of Appeal disagreed with her. The court said that the duty to make reasonable adjustments only applies to help disabled employees or disabled prospective employees. It can’t be extended to cover people associated with them.

Discrimination  by perception 

Discrimination by perception is direct discrimination against someone because they are perceived to have a particular protected characteristic, when in fact they don’t. Discrimination by perception covers all the protected characteristics except pregnancy, maternity, marital status and civil partnership. An example would be where an employee is discriminated against because people think he is gay, when in fact he is not. This would be direct sex orientation discrimination based on a mistaken perception. Another example would be where an employer rejects a job application form from a white man who he wrongly thinks is black, because the applicant has an African-sounding name. This would be direct race discrimination based on the employer’s mistaken perception.

In Aitken v Commissioner of Police of the Metropolis [2009]PC Aitken worked as a police officer in the London Borough of Southwark. In 2005, he had a period of leave for depression and made a phased return to work. He received counselling and was diagnosed with obsessive compulsive disorder, which meant that, among other symptoms, he had a tendency to binge drink. In December 2005, PC Aitken attended a workplace Christmas party. After drinking heavily, his behaviour became aggressive.  PC Aitken’s behaviour was reported by worried colleagues and he was offered help. He was put on special leave and, after seeing various doctors, was assessed as fit for restricted duties involving no contact with the public. Eventually PC Aitken was retired on the ground of ill health, but his appeal against this decision was upheld on the basis that the appeal panel felt that he could recover sufficiently to be able to carry out the normal duties of a police officer.

PC Aitken brought various disability discrimination claims, but the employment tribunal dismissed his claims for direct disability discrimination, disability-related discrimination and failure to make reasonable adjustments. The employment tribunal said that the employer acted because of how PC Aitken appeared to others, and not on the basis of assumptions about his mental illness. The employer’s actions did not therefore constitute disability discrimination.

Circumstances where direct discrimination is allowed

Sections 13 describes particular circumstances where direct discrimination is allowed;

  • where the protected characteristic is age, and the less favourable treatment can be justified as a proportionate means of achieving a legitimate aim.
  • where the protected characteristic is disability and a disabled person is treated more favourably than a non-disabled person.
  • where the Equality Act provides an express exception which allows direct discrimination.

Your employers defence to direct discrimination

Once you have proved direct discrimination, your employer will have no defence to it.  This was confirmed by the House of Lords in Watt (formally Carter) v Ahsan [2007]. 

Updated: 14/03/2020

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Prevent Discrimination: Support Equality – Explains where discrimination is most likely to arise in the workplace and how to stop it happening.

Discrimination: What to do if it happens – is a step-by-step guide covering how an employee should raise a complaint of discrimination and how an employer should handle it.


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