What is Direct Discrimination in The Workplace?
Direct discrimination in UK employment law is less favourable treatment of a person compared with another person because of a protected characteristic. In this article, we’ll explain in detail what direct discrimination and protected characteristics mean, as well as looking at an example to avoid any ambiguity.
What Does Direct Discrimination Mean?
To directly discriminate means that you treat people differently, so a poor manager who treats everyone badly is not necessarily discriminating. To claim direct discrimination, you need to identify someone else who is being treated better than you and then you must explain why you consider the reason for the different treatment is actually related to a protected characteristic.
What is a Protected Characteristic?
Only certain characteristics are legally protected; these are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. So, it is not illegal to discriminate on the basis of other criteria which are not legally protected, such as height or hair colour, but this could of course be related to other protected characteristics. For example, men are on average taller than women and people with grey hair tend to be older. A requirement for an employee to be a certain height may give rise to an indirect discrimination claim.
An Example of Direct Discrimination
Gill does not get a promotion, whereas Jack does and Gill believes it is because he is a man. Gill could potentially claim sex discrimination.
The employer or individual so accused will inevitably defend themselves by stating that there were other reasons for the decision, for example, Jack was better qualified than Gill. And this is where many discrimination claims fail because there are usually several reasons for the decisions employers make and pinpointed the one decision which was entirely based on illegal discrimination can be difficult.
However, the law makes it easier for employees in discrimination cases by putting the burden of proof on the employer provided that the employee raises an initial case to answer. So, in our example, if Gill complained that her employer had promoted Jack, because he was a man, she would need to bring some evidence to back this up, such as sexist comments by her manager or statistics showing that men get promoted quicker than women in the organisation. Her employer would then have to prove that there were other reasons, such as better qualifications, that were the actual reason for the promotion.
Of course, the decision maker will often be a single individual or is generally a small group and they can give their reasons in a witness statement. Gill can give her version of events and there is inevitably considerable conflict between the two parties involved (employer and employee). That is why, documentation and evidence from third parties can be incredibly helpful in this area of law. So, text messages or emails that Gill can find that demonstrate or imply sex discrimination would be helpful supportive evidence in her case.
The employee will often not have access to this information, which is typically controlled by the employer, but the employee can and should ask for relevant information to be disclosed. They can also make a subject access request or ask the employment tribunal to order information to be disclosed.
How Are Direct Discrimination Claims Resolved?
Judging whether or not a direct discrimination claim would be successful can be difficult. If the case is proven there is no justification defence and the financial liability for a successful claim is potentially unlimited and could result in bad publicity for the employer.
It is therefore quite common for any reasonable (ie. non frivolous) claim for discrimination to result in an early settlement offer. It is usually cheaper for the employer to pay some compensation to the employee in a settlement than to pay for legal advice and enter lengthy litigation.
How Can we Help?
The employment solicitors at Barrett and Co give practical and actionable advice to any employee who thinks they have been directly discriminated against. We understand how distressing these cases can be, so will act sensitively and collaboratively with you to ensure the best outcome for you.
If you’d like to discuss your circumstances with our experienced employment team today, book a one hour consultation with us for just £95 by using our booking form.