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Is there a defence to direct discrimination?
No. There is no defence to direct discrimination. An employer is not allowed to justify less favourable treatment that is because of a protected characteristic. For example, an employer cannot justify not promoting female managers because clients prefer to deal with a man, or not putting a physically disabled worker in a client-facing role because the employer thinks they don’t fit the image of the business. In reality, employers rarely admit to direct discrimination, and this can make proving it very difficult.
The only exception to the rule that there is no defence to direct discrimination is in relation to direct age discrimination. Section 13(2) of the EA 10 says that if the protected characteristic is age, less favourable treatment will not be unlawful if the employer can justify the treatment as a proportionate means of achieving a legitimate aim. For example, it is direct age discrimination to require an employee to retire at a particular age. Even so, an employer may be able to justify compulsory retirement if it can show it is a “proportionate means of achieving a legitimate aim”.
Here are some examples of justification for direct age discrimination taken from the EHRC Code of Practice:
A building company has a policy of not employing under-18s on its more hazardous building sites. The policy aims to protect young people from health and safety risks associated with their lack of experience and less developed physical strength. This aim is supported by accident statistics for younger workers on building sites and is likely to be a legitimate one. Imposing an age threshold of 18 would probably be a proportionate means of achieving the aim if this is supported by the evidence. Had the threshold been set at 25, the proportionality test would not necessarily have been met.
A fashion retailer rejects a middle-aged woman as a sales assistant on the grounds that she is “too old” for the job. They tell her that they need to attract the young customer base at which their clothing is targeted. If this corresponds to a real business need on the part of the retailer, it could qualify as a legitimate aim. However, rejecting this middle-aged woman is unlikely to be a proportionate means of achieving this aim; a requirement for all sales assistants to have knowledge of the products and fashion awareness would be a less discriminatory means of making sure the aim is achieved.
EHRC Code of Practice on Employment