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 is not in keeping 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 soon. The fact that both individuals are female is irrelevant. What matters is that a 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 though the reasons for a decision are subconscious and ingrained rather than conscious and deliberate (Nagarajan v London Regional Transport [2000] 1 AC 501).

Even if a decision-maker had no discriminatory motive, there can be unlawful discrimination if others involved at earlier stages of the decision-making process, for example managers who have prepared reports or conducted investigations, are tainted by discrimination (Reynolds OBE v CLFIS (UK) Limited & Others [2014] UKEAT/0484/13/MC). However there needs to be clear evidence to support this kind of link (GMB v Henderson [2015] UKEAT/0073/14/DM).