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What is less favourable treatment?
[ch 6: pages 162-163]Less favourable treatment is some disadvantage suffered by the individual, for example, failure to gain promotion. However, the EHRC Code of Conduct makes it clear that “the worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated another person.”
Often, an employer can be motivated by a stereotypical or paternalistic assumption that they are acting in the worker’s best interests. Behaviour can be no less discriminatory for that. For example:
Mrs Quinn was removed from her duties as duty railway station manager as soon as the employer learned that she was pregnant. The train company said its main motivation was the risk of a physical assault while she was carrying out her duties. Her claim of sex discrimination was upheld by the EAT, concluding that her employer has been motivated by a “paternalistic and patronising attitude” rather than by any genuine and properly examined concerns for her health and safety.
New Southern Railway Ltd v Quinn [2006] IRLR 266
The fact that an employer’s motive is well-meaning is irrelevant. What matters is that the reason for the less favourable treatment — in this example demotion — was the protected characteristic of pregnancy.