Employers have a duty to ensure they do not treat individuals less favourably because, for example, they are pregnant or have a disability.
If a worker complains that you, another employee, or your agent unlawfully discriminated against them at work, it is your job to investigate the claim to determine if discrimination was unlawful and, if it was, to make things right. Failure to meet your legal duties can result in costly and protracted tribunal claims.
It is beneficial for all parties to avoid discrimination; workers should not be subject to unfair mistreatment, while for employers, allegations of discrimination are damaging to the organisation’s reputation and employer brand.
In this guide for employers, we explain what direct discrimination is and how to reduce the risk of unlawful discrimination in your workplace.
What is direct discrimination?
Direct discrimination in the workplace refers to where an employer treats an employee less favourably because of a protected characteristic.
The Equality Act 2010 defines nine different protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
Employers are under a duty to take all reasonable steps to prevent unlawful discrimination at work and to take steps to rectify any unfavourable treatment that comes to light from the recruitment stage through the duration of an individual’s employment and even beyond, such as the provision of a reference.
Types of direct discrimination
In most cases, unfair or less favourable treatment by reason of any one of these characteristics will be classed as unlawful discrimination, where direct discrimination can occur in the following three different ways:
- Because of a protected characteristic that an employee possesses, otherwise known as ordinary direct discrimination
- Because of a protected characteristic that an employee is thought to possess, ie; discrimination by perception
- Because of a protected characteristic possessed by someone who an employee is associated with, ie; discrimination by association.
This means that direct discrimination can be because of who an employee is, who the employer thinks they are, regardless of whether or not this perception is correct, or because of someone the employee is associated with, as long as the unfair treatment is directly because of the protected characteristic.
Employer liability for discrimination
In relation to unlawful discrimination at work, employers are held liable for the actions of their employees and agents ‘acting in the course of employment’. Specifically, under section 109 Equality Act 2010, anything that is done by an individual in the course of their employment will be treated as also done by the employer. The only exception is where the employer can show that it took ‘all reasonable steps’ to prevent the individual from doing what has been complained of or from doing anything of that description.
‘Course of employment’ is determined using the ‘sufficient connection’ test. This involves analysing what the individual was employed to do and then consider any connection between this and the wrong committed.
Also, it is irrelevant if an employer doesn’t realise they were treating an employee unfairly, or didn’t mean to discriminate against them. If someone is treated differently because of a protected characteristic, and that person is worse off because of it, it still amounts to direct discrimination.
Establishing direct discrimination
Because of a protected characteristic
Direct discrimination only applies where a protected characteristic is involved. For example, if a worker is treated less favourably because they have tattoos, this will not be considered discriminatory under the EqA because the less favourable treatment is not related to a protected characteristic. On the other hand, if an employee is denied training opportunities because they are over 50, this can amount to discrimination under the EqA because age is a protected characteristic
Less favourable treatment
In order for direct discrimination to apply, it must be demonstrated that the employee was treated less favourably than a real or hypothetical comparator – someone who doesn’t possess the same protected characteristic.
If an employer treats all of their workers poorly, there will be no less favourable treatment, so an employee would not be able to argue direct discrimination. Of course, if this poor treatment is in itself unlawful, the employee may have grounds for other types of claim.
Additionally, treating employees differently does not necessarily equate to less favourable treatment. In regard to dress code rules, for example, it is permissible for employers to set different requirements for men and women provided the rules don’t place either at a disadvantage.
For a valid comparison to be made, the employee’s circumstances must be similar enough to those of another employee being treated better. This is known as a comparator, ie; someone else who does not possess the same protected characteristic, against whom to measure the less favourable treatment.
That said, even if it is not possible to point to someone else, it is still direct discrimination if it can be shown that a person who did not have the individual’s protected characteristic would have been treated better in similar circumstances. In other words, by looking to a hypothetical comparator.
What is the difference between direct and indirect discrimination?
Direct discrimination is where you treat someone less favourably because of a protected characteristic, whereas indirect discrimination is where you treat someone the same as everyone else, but this still has an unfavourable effect on them. Indirect discrimination is essentially where the application of a provision, criterion or practice puts, or would put, those employees who possess a protected characteristic at a disproportionate disadvantage when compared to others who don’t share that same characteristic.
Indirect discrimination can apply to all sorts of different policies, procedures, requirements, rules and arrangements in the workplace, where if you equally apply a particular policy or practice to everyone, you may inadvertently place someone with a particular characteristic at a disadvantage.
For example, requiring all employees to come into the workplace rather than work from home would have a greater impact on those who at greater risk of being severely impacted by infection, such as the disabled, older or pregnant staff, or even ethnic minority employees due to the possible disproportionate impact of coronavirus.
To enforce a blanket policy in these circumstances could be classed as indirect discrimination, unless it can be objectively justified. This means that you must be able to prove that any ‘provision, criterion or practice’ implemented at work is a proportionate means of achieving a legitimate aim for the business, or, to put it another way, that it is appropriate and necessary.
Examples of direct discrimination in the workplace
The law protects an employee against direct discrimination in any of its three forms in the workplace in the context of various different scenarios. This includes recruitment, employment terms and conditions, pay and benefits, training and promotion, performance management, dismissal and redundancy.
Damage can be minimised or even avoided if people are able to recognise and address discriminatory behaviours and practises. However, not every instance of unfair treatment at work constitutes discrimination. Employers should look to determine if the treatment or action targets a person or a group because of their protected characteristic while evaluating the circumstances.
To illustrate, examples of direct discrimination could include:
This could be where one employee is not considered for promotion because they are considered “too young” to lead a team, or where an employee is not given training because they are seen as too old and likely to “retire soon”.
This could include asking a female employee working from home to check in with their line manager more frequently than a male employee because of an assumption that the woman is more likely to be ‘distracted’ with childcare responsibilities.
Gender reassignment discrimination could include an employer refusing, without good reason, to let an employee have time off work to undergo gender reassignment treatment.
Marriage & civil partnership
It would be unlawful not to hire someone for a job because they are married and the employer believes someone single would be more willing to work long hours.
This could include choosing one job applicant over another, with similar skills and experience, because of their racial ethnicity and the employer thinking the candidate would not ‘fit in’.
Pregnancy & maternity
Discrimination could include removal of responsibilities, passing over for pay rise or even dismissal of someone because they are pregnant or on maternity leave.
Religion & beliefs
This could include overlooking someone for promotion because of their religious beliefs or choosing not to hire someone wearing a headscarf because they’re thought to be Muslim.
Disability discrimination could include where an employer takes disciplinary action against an employee due to their sickness absence, but where the absence is related to their disability, or if a job applicant is not selected because they have a disability, such as MS.
Importantly, the Equality Act protections extend to certain mental health disabilities as well as physical. As with physical disabilities, the mental condition must have a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities in order to be covered by the Act as a protected characteristic. As an example, it would be unlawful not to promote someone because they suffer from bipolar disorder.
When can direct discrimination be lawful?
There are limited circumstances in which different treatment by reason of a protected characteristic may be lawful, although only direct discrimination in relation to age and arising from a disability can ever be objectively justifiable.
However, to justify direct discrimination you must be able to demonstrate that the difference in treatment was a proportionate means of achieving a legitimate aim. For example, an employer could potentially have an upper age limit on a job that requires extremely high levels of fitness and physical exertion.
If an employee is treated less favourably due to any one of the other protected characteristics, this will amount to unlawful direct discrimination, regardless of whether or not there was a good reason for this. It is also worth noting that it is unlawful to ‘positively’ discriminate in the workplace, although you can take ‘positive action’ in certain cases.
For example, you may also be able to take positive action to support employees or prospective employees who possess a particular characteristic, such as from a particular age group or ethnicity, if you can show reasonable evidence that they are either at a disadvantage or are under-represented in your business, or have other specific needs because of that characteristic.
In these circumstances, as long as any positive action will not discriminate against others, you can take proportionate steps to remove any barriers or disadvantages, or provide support and training, to increase the participation of those with a particular protected characteristic.
Duty to make reasonable adjustments
Specifically in relation to employees who suffer from a disability, as an employer you are under a legal duty to make reasonable adjustments to remove any disadvantage suffered by that person in undertaking the job role in question.
The law also states that it is not considered direct discrimination if you treat a disabled person more favourably than a person who is not disabled. This means that non-disabled employees are unable to claim discrimination on the grounds they have been treated less favourably because of any reasonable adjustments given to a disabled co-worker.
You must consider making reasonable adjustments either where the individual has asked for adjustments to be made, they are having difficulty with any part of their job, where their sickness record or delay in returning to work is clearly linked to their disability, or you have otherwise been made aware of a disability.
Examples of reasonable adjustments for an existing employee in the current COVID-19 climate might include changes to working arrangements, such as allowing remote working for someone who has been medically advised to shield, or the provision of suitable personal protective equipment.
It is still open to you to dismiss an employee on the grounds of capability where they have been on long-term sick leave, although you must be able to objectively justify any dismissal, including why reasonable adjustments could not be made.
Unlawful discrimination claims: what employers need to know
If you treat an employee less favourably by reason of a protected characteristic, you may find yourself facing a complaint before the employment tribunal for unlawful discrimination under the 2010 Act. The damages in the context of a discrimination claim are uncapped, so the consequences here can be significant.
Where you have dismissed or made redundant an employee for a reason connected with a protected characteristic, you may also be subject to a claim for unfair dismissal. In either case this can again result in an award of compensation being made against you, as well as an order to reinstate your former employee.
Equally, any failure to make reasonable adjustments in the workplace to ensure that an employee is not substantially disadvantaged in performing their job compared with non-disabled people may be regarded as unlawful.
In summary, the legal, practical and financial consequences for your company or organisation can be serious, especially in cases of unlawful discrimination, and expert legal advice from an employment law specialist should always be sought.
No minimum length of employment is required to claim unlawful discrimination, where it is potentially unlawful to discriminate against someone from the point of recruitment right through to retirement, and even post-termination when providing a reference.
Time limits to bring a claim
Employees have only a limited timeframe to bring a claim against their employer. They have to initiate proceedings three months (plus one day) after the alleged unlawful discrimination occurred. For instance, if the incident occurred on 5 July, the employee has to file their claim by no later than 4 October. IN cases where the discrimination relates to a series of events over a period of time, the time limit would start from the date the period ended.
This limitation generally only varies in two specific scenarios. First, equal pay disputes have different time limitation rules and claims involving the armed services have a six month time limit.
In cases where a claim is filed late, the tribunal may consider if it would be fair to allow the claim to proceed or if it is out of time.
Burden of proof
The ordinary burden of proof in civil (non-criminal) cases applies in situations of discrimination. Each side must make an effort to establish that the facts of their case are true on the balance of probability, or that, in the tribunal’s opinion, their version of events is more likely than not to be accurate.
The burden of proof is on the employee accusing their employer of unlawful discrimination, harassment, or victimisation. They must present enough evidence so that the tribunal may determine that there was discrimination, harassment, or victimisation without needing any further justification.
It is then for the employer to prove that they — or someone for whose actions or inactions they were accountable — did not engage in discrimination, harassment, or victimisation.
If the employee wins, the tribunal will decide which remedies to award. The tribunal can declare that the employer has engaged in unlawful discrimination. It can award the employee damages to compensate for losses (such as loss of earnings) as well as damages (such as injury to feelings).
The tribunal could also make a recommendation to the employer to take particular action within a certain timeframe to eliminate or minimise the negative consequences that the claim has proved to have on the individual, for example, giving a reference or reinstating them in their role. Likewise, the recommendation could extend to eliminating or lessening the detrimental impact of the proven discrimination on the larger workforce (although not in equal pay cases), for example, implementing an equal opportunity policy; establishing a review panel to handle grievance and harassment processes; retraining personnel; or disclosing the selection criteria for staff transfers or promotions.
Resolving the dispute without litigation
Tribunal proceedings are typically stressful, and costly, on all parties. In reality, it is often preferable for the employer and employee to come to a mutually agreeable arrangement to bring the employment relationship to an end. There are several ways parties could agree to resolve the dispute:
Agreement between the parties
This is where the employer and employee agree terms to resolve the specific issue. For example, if the employer has failed to make reasonable adjustments and the employee’s grievance is upheld in this regard, an agreement could be drawn up to proceed with the adjustments and formally apologising to the employee.
Settlement agreements are where, in exchange for a settlement payment, the employee agrees not to bring legal action against their employer and their employment contract is brought to an end. An agreement to settle a dispute can address compensation, any future actions by the employer, and other legal issues. It can also include any terms both parties agree on.
To be legally binding, settlement agreements have to meet certain statutory requirements:
- The agreement must be in writing.
- The agreement must be specific to the circumstances of the specific claim(s).
- The employee must have received independent legal advice from a relevant party with appropriate insurance.
ACAS Early Conciliation
ACAS Early Conciliation is an impartial service designed to support employers and employees in resolving the issue, to avoid full litigation and going before the tribunal. While employees are required to contact ACAS Early Conciliation before they can bring a tribunal claim, there is no obligation on them to use the service.
Dealing with complaints about direct discrimination
It is in all parties’ interests for employers to be proactive in identifying and rectifying discrimination issues. This includes responding effectively to complaints about discrimination.
Effective processes for handling allegations of discrimination can help to prevent complaints escalating to claims. The assurance that complaints of unlawful discrimination will be treated seriously, even if they are made less formally and outside of your regular grievance procedures, and that action will be done to make things right if someone has discriminated unlawfully, will be a key consideration.
If an employee has a complaint about unlawful discrimination at work, they should be encouraged to discuss the issue informally with an appropriate person, such as their line manager or an HR representative. Issues that are raised promptly can usually be dealt with effectively. If the matter cannot be resolved this way, the next step would be for the employee to bring a formal complaint through the organisation’s grievance procedure. This involves holding a grievance hearing, where the employee can put forward their concerns. Depending on the circumstances, the employer may need to adjourn to allow for a full investigation to be carried out to establish the facts, such as interviewing witnesses or gathering documentary evidence. Care must be taken while handling grievances to prevent Employment Tribunal claims. This entails treating every complaint fairly and consistently, as well as making sure your investigation is exhaustive and objective. A decision should then be made and the employee informed of the outcome.
If you determine there has been unlawful discrimination, your response should depend on the particulars of the case. You should evaluate any underlying factors as well as the results of comparable situations in the past. Actions could include an appropriate form of dispute resolution with the employee who has complained, such as a specific agreement as to making reasonable adjustments; providing quality training to any individuals found to have acted unlawfully; and following the disciplinary procedure against anyone alleged to have acted unlawfully. You should also put in place measures to regularly review progress and ensure the discrimination is eradicated and lawful practices are being followed.
If it is determined that there has been no unlawful discrimination, the employer will have to find a way for all parties to continue cooperating. This may require a form of dispute resolution such as mediation, to help parties ‘move on’ positively. The employee who made the complaint – as well as anyone who supported them – must not be victimised, ie subjected to mistreatment because they brought a complaint.
Best practice for employers
Equality & diversity policy
Start with a sound equality and diversity policy and give your personnel the authority to implement it in all areas of work-related activity. All job candidates, workers and representatives of the organisation should be aware of the policy and the standards and guidance it places on all parts of the workforce.
Each organisation should devise and develop its own equality policy based on its size, resources and needs, as well its values, culture and ethos. As a minimum, however, an equality policy would typically include:
- A commitment from the organisation to providing equal opportunities to all job candidates and employees
- What constitutes appropriate and unacceptable workplace behaviour, including behaviour at and around the office and during work-related social events
- The rights and obligations of those to whom the policy applies
- The processes for handling any complaints or problems
- How the policy is implemented in relation to other regulations and processes, such as disciplinary and complaint processes
- Information about who is in charge of the policy, how it will be put into practise, monitored, and evaluated.
The policy should also be applicable to all stages of the employment relationship, from recruitment to termination of contract, and employers should also ensure the policy is regularly revisited and reviewed to ensure continued compliance and effectiveness.
Handle complaints seriously
If discrimination does occur, the employer is required to take reasonable steps to prevent it from happening again by examining complaints and, if necessary, taking appropriate disciplinary action.
It is the employer’s duty to address the problem promptly, be open and honest about the procedures and deadlines, and provide assistance to the affected employees. This approach will support an effective investigation with minimal impact on worker morale.
Make it clear what will happen if an investigation reveals that someone has discriminated against another person in an unlawful manner: that, if necessary, you will take any disciplinary action you deem appropriate; that, if necessary, you will change the way you conduct business to ensure that this does not occur again; and make sure you carry this out.
Demonstrably taking complaints seriously also means that employees are more likely to raise the issues with their employer, rather than allowing issues to fester and potentially get worse.
Provide equality training
Employees’ well-being at work is a responsibility of the employer. This includes defending its workforce from unfair or unlawful treatment by coworkers.
Equality training is an effective way to raise awareness of unlawful discrimination in the workplace, and will help employees and managers understand their obligations, provide practical guidance on how they should conduct themselves and treat others as well as the consequences of treating others unfairly and unlawfully.
Open communication and culture
Build a culture of transparency and where feedback is sought and acted on. This can help to ‘nip problems in the bud’ before they escalate. Inform your staff of the ways they can bring discrimination issues to your attention. Processes typically involve first speaking with management informally about the issue, before filing a formal grievance if the matter remains unresolved. Employees should also be made aware that they have the right to appeal a grievance decision.
Employers should also take steps to promote equality at work and be clear that this is expected by all employees. Policies and practises should promote a company’s equality agenda and make it clear that discrimination of any type will not be tolerated.
DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR, we can advise on positive steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims.
Our services include:
- Preparing for HR hearings including grievances, disciplinaries and appeals
- Developing workplace policies including equality & diversity
- Delivering training on unlawful discrimination, bias and equality
- Auditing internal HR procedures eg grievance and disciplinaries
- Advice on making reasonable adjustments and handling requests for reasonable adjustments
- Guidance on alternative dispute resolution options including mediation and settlement agreements
For help and advice, speak to our experts.
Direct discrimination FAQs
What are examples of direct discrimination?
Direct discrimination in the workplace is where an employee is treated less favourably than another employee because of a protected characteristic. An example could be where a female employee is passed over for promotion, but her less experienced male colleague is offered the position, or where a pregnant employee or employee on maternity leave is selected for redundancy.
What are direct and indirect discrimination?
Direct discrimination is where an employer treats an employee less favourably because of a protected characteristic. In contrast, indirect discrimination is where the application of a provision, criterion or practice puts, or would put, an employee who possesses a protected characteristic at a disproportionate disadvantage when compared to others who don’t share that same characteristic.
When can direct discrimination occur?
Direct discrimination can occur either because a person possess, or is thought to possess, one of the nine protected characteristics under the Equality Act 2010, or because of a protected characteristic of someone they are associated with. These characteristics include age, disability, pregnancy, sex or race.
What is an example of associative discrimination?
It is unlawful to discriminate against someone because of the protected characteristic of another individual that the person is associated with. Associative discrimination can relate to the protected characteristic of a spouse, partner, parent, child, colleague or friend, for example, it would be unlawful to treat an employee less favourably for being the primary carer of a disabled child.
Last updated: 27 September 2022