Over the next couple of days I will be posting a four part series on direct discrimination, specifically on the role of intent, causation, proving discrimination and what defences are available. It is not a detailed explanation but an introduction to these four aspects.

To someone who has not had personal experience of the legal system or training then there is a good chance that if one were to ask to give an example of discrimination means in a workplace setting they would give examples of a person being refused a promotion because they are black, being dismissed because they are too old or  being given all the early shifts because they Polish and  other similar examples. Although not described as such these are all instances of direct discrimination. It is unlikely that the other types of discrimination in the Equality Act 2010 would be mentioned (Harassment, Victimisation, Indirect Discrimination and, for disability claims only, Failure to make adjustments and Discrimination Arising from Disability).

So, what is direct discrimination?

Whilst no-one who has ever dealt with a direct discrimination complaint will say that the law is simple (it most definitely is not) in terms of the underlying moral principle it is easy to understand and accords with common sense principles of fairness. It is not right, for example, to post an job advert saying no disabled persons or gays can apply, to dismiss a worker from a job just because they happen to be a Muslim and it is these types of wrongs which direct discrimination is focused on eradicating.

The technical definition of direct discrimination is found in section 13 of the Equality Act 2010 and sets out that no employer can treat a worker less favourably because of a protected characteristic than they would treat another person who did not share that protected characteristic. A protected characteristic is one of the following: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

Unlike most types of discrimination direct discrimination has the distinction of, once being found, not having a defence available with which to justify the act (with one exception which will be covered in a later post). This has I suspect led to it being viewed as a much more serious type of discrimination compared to others in the Equality Act. In its crudest forms  it offers little room for doubt that the perpetrator is simply bigoted, such as the ‘no coloured, no irish’ housing adverts of the 1960s for which race relations  legislation was expanded in the 1960s and 70s to counteract.

Certainly as a union representative and I am not sure this is not something for which I should not be criticised for, I am quite loathe to make an accusation of direct discrimination in a case  since doing so is often taken as an accusation of outright intentional prejudice whereas I would have no concerns of alleging a breach of a duty to make reasonable adjustments or indirect discrimination which does not have the same emotive of accusatory connotations, for example.

In fact I can probably count on on two hands the number of occasions where I have suspected and had some evidence to corroborate that there was potentially direct discrimination in play.

Whilst direct discrimination is (along with harassment) the type of discrimination claim where one is more likely to see bigotry in operation the assumption that direct discrimination is a more prejudicial type of discrimination is not always fair. It is not necessary in order to win a case that the person directly discriminating against the Bangladeshi, gay or female worker be a racist, homophobe or sexism. In the remainder of this post I want to consider two examples to demonstrate this.

In James v Eastleigh Borough Council [1990] IRLR 288 a local council had a policy of giving persons of pensionable age free swimming lessons. At that time the state retirement age for men was 65, but for women it was 60. The claimant in the case was a male aged 61 years of age and, because he was not of retirement age he was discriminated. There is no suggestion of any bad faith on the part of Eastleigh Borough Council but the courts accepted that a 61 year old female would have been given free swimming sessions and that Mr James had been treated less favourably because of his sex and, therefore, he was directly discriminated against.

Within the last few weeks another similar decision was issued by the Court of Appeal in The Lord Chancellor & Anor v McCloud & Ors [2018] EWCA Civ 2844. The essence of the case was the UK government introduced pension changes that resulted in workers needing to pay substantially more into their pensions. Workers who were aged 55 years of age or more were exempt from the change because they felt that to impose this on persons closest to retirement to be retirement would be unfair. The reason for treating older workers more favourably was not malicious but for good general reason (albeit too vague to constitute a legitimate aim) but, despite this the court of appeal found the UK Government  discriminated against its own workers who were aged less than 55 years of age.

There is no rule therefore that direct discrimination is always malicious and can sometimes occur even when the discriminator believes they are doing the right thing.