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Less favourable treatment
[ch 7: pages 223-224]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 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 275: 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. 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
Unlawful direct discrimination (treating people less favourably because of a protected characteristic) is always a serious matter and it will usually also amount to a fundamental breach of the employment contract. But this will not always be the case, as shown in the next example:
Amnesty refused a role to a Sudanese national because it had a policy of not employing Sudanese nationals to work in Sudan, based on evidence that they faced a greater risk of violence. She resigned in protest. The EAT ruled that although the charity engaged in race discrimination it did so for serious and genuine reasons. Although there was unlawful race discrimination, there was no fundamental contract breach, so the claim for constructive discriminatory dismissal failed.
Amnesty International v Ahmed [2009] UKEAT 0447/08/1308