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Less favourable treatment
[ch 7: pages 212-213]Less favourable treatment is some disadvantage suffered, 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.” It is a comparative test. The treatment must be less favourable than that of a comparable individual (real or hypothetical) due in some way to a protected characteristic.
There can be direct discrimination even if a member does not realise at the time that the less favourable treatment is due to a protected characteristic, Obviously if they do realise this, they are likely to feel worse, and this should be reflected in an award of compensation for injury to feelings (Taylor v XJN Telecom Limited [2009] UKEAT/0385/09/0911). See page 262: Compensation.
Often, an employer is 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 when the employer learned that she was pregnant because the employer wanted to avoid the risk of a physical assault at work. There was no evidence of such a risk and no risk assessment had been conducted. Quinn’s claim of sex discrimination was upheld by the EAT, concluding that her employer was 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
In the above example, demoting Quinn because of her pregnancy was unlawful discrimination. The fact that her employer genuinely believed the decision was for her own good did not stop it being discriminatory. However, a discriminator’s motive is not irrelevant. For example, deliberate discrimination can lead for a larger award of compensation for injury to feelings (see page 262).
Where an employer engages in discriminatory behaviour for a serious and genuine reason, this can prevent the discrimination amounting to a fundamental breach of contract justifying resignation and a claim for constructive dismissal. For example:
Amnesty had a policy of not employing Sudanese nationals to work in Sudan because they faced a greater risk of violence. For this reason, it refused such a role to a Sudanese national who resigned in protest. The EAT ruled that although the charity engaged in race discrimination, it did so for serious and genuine reasons. There was no fundamental contract breach here and the claim for constructive dismissal failed.
Amnesty International v Ahmed [2009] UKEAT 0447/08/1308