Are there any exceptions to the definition of direct discrimination?

Yes, there are some exceptions:

• It is not direct discrimination to treat a disabled person more favourably than a non-disabled person (section 13(3) EA 10). For example, it is not direct discrimination to offer all disabled candidates a guaranteed job interview.

• It is not direct discrimination to give special treatment to a woman in connection with her pregnancy or childbirth, even if this means treating them better than their male or non-pregnant female co-workers (section 13(6)(b) EA 10). However, any preferential treatment a woman receives as a result of being pregnant or on maternity leave must be limited to whatever is necessary or proportionate to eliminate the resultant disadvantage (Eversheds Legal Services Limited v de Belin [2011] UKEAT0352. For a discussion of this case see Chapter 11).

• Genuine Occupational Requirement: There is an exception in the EA 10 where having (or not having) a protected characteristic is an essential requirement for a particular job. It is very narrowly interpreted. For example:

• An acting role might need to be performed by someone of a particular sex or race;

• Where it is important to maintain privacy and decency (for example, the need for a female attendant in women’s changing rooms);

• Where a personal service is being provided, for example support for women in a refuge who have suffered domestic violence.

In Etam v Rowan ([1989] IRLR 150), the EAT did not accept that it was necessary to employ a woman in a clothes shop just because a small part of the duties involved entering the changing rooms.