Direct discrimination can be applied to all of the protected characteristics under s4 of the Equality Act (EqA) 2010, which are as follows:
- Gender Reassignment;
- Marriage and Civil Partnership;
- Pregnancy and Maternity;
- Religion or belief;
- Sexual Orientation.
Direct discrimination is a form of unlawful discrimination under s13 of EqA 2010 and is legally defined as “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”.
The test for establishing direct discrimination is subjective. This requires the Tribunal to consider the reason why B was treated less favourably. The less favourable treatment must be because of the protected characteristic, and not for some other reason.
The Comparator Requirement
When bringing a claim, a claimant must prove that they have been treated less favourably than a real or hypothetical comparator, who does not have their protected characteristic, has or would have been. There is no need to identify an actual comparator.
It is important to note that it is not enough for the claimant to merely identify that they have been treated differently to someone else. The court will take into consideration the exact characteristics which have influenced the respondent to treat the claimant in a particular way.
Examples of this are as follows:
Example 1: Auditions are being held for a pantomime. Two friends audition together but only one is accepted to qualifying to the next stage. The friend that is accepted has past experience of acting in front of live audiences, which is a relevant circumstance, whereas the other friend does not. Therefore, the friend that has not qualified would not be able to refer to her friend as an appropriate comparator.
Example 2: A hair salon requests that a client with a facial disfigurement does not sit by the window whilst undertaking their treatment to avoid upsetting other clients. Another client, who does not have a severe facial disfigurement, is given a full choice of where to sit for their treatment. The client is treated less favourably than another customer who does not have a disfigurement. This client without a disfigurement is the comparator.
There is a caveat to the comparator requirement, in that no comparator is necessary when bringing a claim for direct pregnancy or maternity discrimination and racial segregation.
There are certain situations where direct discrimination may be lawful. These are as follows:
- There will be no finding of discrimination on the grounds of age if A can show that there was a proportionate and legitimate aim to A’s treatment of B (s13(2)).
- There will be no finding of direct discrimination on the grounds of disability if B has no disability and A only treats or would treat disabled persons more favourably than B (s13(3)).
- There will be no finding of discrimination on the grounds of sex in a case where B is a man and special treatment is afforded to women in connection with pregnancy or childbirth (s13(6)(b)).
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