Is there a defence to direct discrimination?

No. There is no defence to direct discrimination (except in relation to age discrimination, see page 139). An employer cannot justify less favourable treatment that is because of 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. Section 13(2) of the EA 10 says that if the protected characteristic is age, less favourable treatment will not be unlawful if the employer can justify the treatment by showing that it represents a proportionate means of achieving a legitimate aim.

An employer can only justify a directly age discriminatory policy by showing that the policy’s aim is in the public interest, as opposed to 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 and justifying direct age discrimination:

• 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 just to assert the aim. Instead, the employer needs to be able to produce proper persuasive evidence that direct age discrimination is justified in its own workplace, based on one of these aims (Heron v Sefton Metropolitan Borough Council [2013] UKEAT0566/12/2910). For the position in relation to compulsory retirement — one form of direct age discrimination, see page 182.

Here is a good example of justification for direct age discrimination taken from the EHRC Code of Practice: