No defence to direct discrimination 


There is no defence to direct discrimination, except in relation to age discrimination.



Apart from age discrimination, an employer is not allowed to justify less favourable treatment (or “unfavourable” treatment in the case of pregnancy or maternity) that is due to 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. If the protected characteristic is age, less favourable treatment will be lawful if the employer can justify that treatment by showing that it is a proportionate means of achieving a legitimate aim (Section 13(2), EA 10). 




This defence is limited. Direct age discrimination can only be justified if the employer’s aim is in the public interest (rather than simply their private business interest) (Seldon v Clarkson Wright & Jakes [2012] ICR 71). The following aims have been accepted by courts and tribunals as capable of satisfying this “public interest” test: 


• providing access to employment for younger workers and sharing employment opportunities fairly between generations;




• efficient workforce planning (departure and recruitment);




• mixing generations to promote the exchange of experience and new ideas;




• rewarding experience; 




• cushioning the blow for long-serving employees who may find it harder to find new work if dismissed; 




• avoiding the need to dismiss employees on “capability” grounds, and avoiding disputes about fitness to work over a certain age;




• legitimate health and safety concerns, both for the workforce and the wider public.

It is not enough for an employer simply to recite one of these aims. They must produce persuasive evidence that an age discriminatory policy can be justified as proportionate, based on conditions at their own workplace (Heron v Sefton Metropolitan Borough Council [2013] UKEAT0566/12/2910), taking into account, in particular, the negative impact on members of the disadvantaged group (Lord Chancellor v McCloud and Mostyn [2018] UKEAT/0071/AL).

The Public Sector Equality Duty is a useful tool for reps and negotiators here (see page 257).