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What is less favourable treatment?
[ch 6: pages 155-156]Less favourable treatment is some disadvantage suffered by the individual, 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.”
Often, an employer can be 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 as soon as the employer learned that she was pregnant. The train company said its main motivation was the risk of a physical assault while she was carrying out her duties. Her claim of sex discrimination was upheld by the EAT, concluding that her employer has been 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
Whether or not someone’s motivation is well-meaning is irrelevant to deciding whether their behaviour is discriminatory. Instead what matters is whether their behaviour was due at least in part to a protected characteristic under the EA 10. In the above example, Quinn was demoted because of her pregnancy. That was unlawful discrimination. The fact that her employer genuinely believed the decision was for her own good did not stop it being discriminatory.
However, motive can be important, because in some circumstances it can prevent an employer’s discriminatory behaviour amounting to a fundamental breach of contract justifying resignation and a claim for constructive dismissal. For example:
Amnesty International refused to promote an employee, Ms Ahmed, who was a Northern Sudanese national, to work in Sudan because of safety concerns about the greater risk of violence faced by a national in the territory. She resigned and claimed race discrimination and constructive dismissal. The EAT confirmed that Amnesty was guilty of race discrimination. It had made the decision not to promote her based at least in part on her race. However, it did not fundamentally breach the employment contract by refusing her the post. Its reasons were serious and genuine and Ahmed was not entitled to feel that the relationship of trust and confidence had been destroyed or seriously damaged.
Amnesty International v Ahmed [2009] UKEAT 0447/08/1308