Prohibited conduct ― direct discrimination

By Tolley in association with Emma Bartlett at Charles Russell Speechlys LLP
Prohibited conduct ― direct discrimination

The following Employment Tax guidance note 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
  • Discrimination must be on account of a protected characteristic
  • A comparator is required
  • Direct sex discrimination by virtue of a contractual term gives rise to a different claim
  • More favourable treatment is acceptable in certain circumstances
  • Protected characteristics of third parties - what is associative discrimination
  • Discrimination can be on the basis of perceived rather than real protected characteristics

A person directly discriminates against another person where:

he treats him less favourably than he treats or would treat othersthis is 'the treatment'
he does 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 make 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

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