Direct discrimination 




The EA 10 says that a person directly discriminates against another person if, because of a protected characteristic, they treat them less favourably than they treat or would treat others (section 13, EA 10).




For example, it would be direct discrimination for a shop to refuse to allow an amputee to work on the shop floor of a fashion retailer because the employer thinks their disability does not fit with the outlet’s image. 




There can be direct discrimination even though both the discriminator and the target share the same protected characteristic. For example, it is gender discrimination for a female shop owner to refuse to employ a young woman because she thinks the woman might get pregnant. The fact that both are female is irrelevant. What matters is that one reason for the less favourable treatment is sex or gender. This is known as the “reason why” test (Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48).




The protected characteristic must be one significant part of the reason for the less favourable treatment but it does not have to be the only, or even the main reason, as long as it is not a trivial reason (Igen v Wong [2005] ICR 931). 




There can be direct discrimination even if the reasons for a decision are subconscious and ingrained, rather than conscious and deliberate (Nagarajan v London Regional Transport [2000] 1 AC 501).



To have direct discrimination, the person who engages in the less favourable treatment must be influenced in some way (even if subconsciously), by the protected characteristic. There can be no discrimination if a decision-maker is not influenced by the protected characteristic, even if other managers earlier in the decision-making process, such as investigation officers or HR managers, were motivated by discrimination (CLFIS (UK) Limited v Dr Mary Reynolds [2015] EWCA Civ 439). 


Any managers at any stage of the decision-making process who were motivated by discrimination can be joined to a tribunal claim as co-respondents alongside the employer and held liable for their own acts of direct discrimination or, if appropriate, harassment or victimisation. They can be joined even if the evidence of discriminatory motive only emerges late on, for example, during cross-examination, as happened in Commissioner of Police of the Metropolis v Denby [2017] UKEAT/0314/16/RN. In Denby, the EAT warned that organisations must not be allowed to escape liability for discrimination through “deliberately opaque decision-making which masks the identity of the true discriminator”. 


Employees can use Acas guidance: Asking and responding to questions of discrimination in the workplace, available from the Acas website, to help find out how the decision was made and who was involved at the various stages (see page 259).