What is direct discrimination?

Section 13(1) of the Equality Act 2010 defines direct discrimination:

“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.”

In order to succeed in a claim for direct discrimination you must prove on the balance of probabilities that:

  1. You have been subject to a potentially discriminatory action (i.e. demotion, dismissal etc.)
  2. That you possess a protected characteristic (age, race, sex, disability etc.)
  3. That this potentially discriminatory action was motivated by the fact that you possess a particular protected characteristic (or a combination of such characteristics)
  4. That this treatment would not have been afforded to an (comparable) actual or hypothetical worker who does not possess your protected characteristic

There is no defence to direct discrimination (unlike, for example, indirect discrimination) unless the protected characteristic claimed is that of age. If age is the protected characteristic in a claim then the employer can attempt to justify discriminatory behaviour by demonstrating that the discriminatory action had as its objective an occupational requirement.

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Who can submit a claim for direct discrimination?

The following persons can submit a complaint of direct discrimination:

  1. Applicants
  2. Persons providing personal service (or “workers”)
  3. Employees
  4. Former employees
  5. Contract workers

The position with agency workers and contract workers can be a potentially complicated one.

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What is a potentially discriminatory action?

A potentially discriminatory action (known as a “prohibited action” under the Equality Act 2010) includes:

  • In arrangements for deciding whether to offer you employment
  • On the terms you’re being offered employment
  • By not offering you employment
  • On the terms of your employment
  • In the way you’re being afforded opportunities for promotion, transfer or training or receiving any other benefit, facility or service
  • Dismissing you
  • Subjecting you to any other detriment
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What are the protected characteristics?

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How do I prove that the way I’ve been treated was because of my protected characteristic?

This is essentially a 2-stage process.

  1. You must show sufficient primary facts from which the Employment Tribunal could conclude, in the absence of an alternative explanation, that you were discriminated against by your employer (or potential/former employer) (“the Respondent”); and
  2. The burden of proof is then passed to the Respondent to show that discrimination did not occur

Obviously, the most important thing is to gather sufficient evidence to allow the Employment Tribunal to conclude that you were discriminated against, in the absence of an alternative explanation. Your witness evidence will be important in this but it is also imperative to obtain as much other evidence as you can. This may include evidence from other witnesses, your contract of employment, emails, correspondence between your employer and yourself, or any other form of documentary evidence.

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How do I show that other people wouldn’t have been treated the same way?

You must show that an actual or hypothetical comparable worker at the Respondent (who does not possess your protected characteristic) would not or has not been treated in the same manner as you.

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How do I know if I’ve been a victim of direct discrimination?

How long do I have to submit a claim for direct discrimination?

Checklist of things to prepare in a claim for direct discrimination

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