Is there a defence to direct discrimination?

There is no defence to direct discrimination. An employer is not allowed to justify less favourable treatment because of a protected characteristic. For example, an employer cannot justify not putting a physically disabled worker in a client-facing role because the employer thinks they don’t fit the image of the business. However, in reality, employers rarely admit to direct discrimination and this can make proving it very difficult.

There are some exceptions in the EA 2010, where disability discrimination is permitted:

• it is not direct discrimination to treat a disabled person more favourably than a non-disabled person (section 13(3), EA 2010). For example, it is not direct discrimination to offer all disabled candidates a guaranteed job interview; and

• there is a limited exception in the EA 2010 where there is a Genuine Occupational Qualification (GOQ), that is having (or not having) a protected characteristic is an essential requirement for a particular job. The tribunal will look very carefully at whether the protected characteristic is absolutely essential for the job, to prevent unfair discrimination against those that do not have the protected characteristic.