What is less favourable treatment

As the EHRC Employment Code makes clear (EHRC Code, page 45), less favourable treatment does not have to be actual disadvantage, economic or otherwise. “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”.

In general, the EA 10 does not allow employers to offset less favourable treatment due to a protected characteristic against more favourable treatment in some other respect.

Treatment will still be direct discrimination even if the claimant does not realise at the time that they are being treated less favourably due to a protected characteristic. Obviously, if they do realise this, they are likely to feel worse, and this can be reflected in an award of compensation for injury to feelings (see Chapter 18).

Treatment can be less favourable even if the employer is well-meaning, for example, assuming that a woman returning from maternity leave will not cope with all her responsibilities, and allocating some to another worker. However, the discriminator’s mental state is important. For example, deliberate and malicious acts of discrimination are likely to lead to a higher award of compensation for injury to feelings (see Chapter 18).