Prohibited conduct ― direct discrimination

Produced by Tolley in association with Emma Bartlett at Charles Russell Speechlys LLP

The following Employment Tax guidance note Produced by Tolley in association with Emma Bartlett at Charles Russell Speechlys LLP provides comprehensive and up to date tax information covering:

  • Prohibited conduct ― direct discrimination
  • There must be less favourable treatment
  • Different treatment
  • Unreasonable treatment
  • Unfavourable treatment
  • Discrimination must be on account of a protected characteristic
  • A comparator is required
  • Evidential or hypothetical comparators
  • Comparison in disability cases
  • Comparison in sexual orientation cases
  • More...

Prohibited conduct ― direct discrimination

A person directly discriminates against another person where:

They treat them less favourably than they treat or would treat othersThis is 'the treatment'
They do so because of a protected characteristicThis is 'the reason for the treatment'

EqA 2010, s 13

For a discussion of what constitutes a protected characteristic, see the Protected characteristics guidance note.

Direct discrimination can never be justified. Once found it will always be held unlawful. There is one important exception to this blanket rule, which makes a justification defence potentially available in the case of direct age discrimination. See the Justification of conduct guidance note.

If discrimination is not overt, but instead is the result of ordinarily acceptable treatment that disproportionately affects one group over another, it may constitute indirect discrimination. See the Prohibited conduct ― indirect discrimination guidance note.

There must be less favourable treatment

In a scenario where a person believes that they have been discriminated against they should first ascertain whether the discrimination was direct. In order to show that this was direct discrimination they will need to compare their own treatment with the treatment of a person in the same circumstances without their protected characteristic. If that comparison reveals that the person being compared with (a comparator) is or would be treated less favourably then direct discrimination has occurred.

See Example 1.

When attempting to determine whether or not direct discrimination has occurred it is important to distinguish between different, unreasonable, unfavourable and less favourable treatment.

Different treatment

Different treatment is not the same as less favourable treatment. It must be shown objectively that the treatment of the prospective claimant was worse than that of the comparator and not merely different.

Trivial differences in treatment will be disregarded by the tribunal or court. However, what an employer considers as trivial may be perceived as significant by the employee. A tribunal or court will not ignore the complainant's perception of the treatment when making a determination

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