Are there any exceptions to the definition of direct discrimination?

Yes, there are some exceptions:

• disability: it is not direct discrimination to treat a disabled person more favourably than a non-disabled person (section 13(3) EA 10). For example, it is not direct discrimination to offer all disabled candidates a guaranteed job interview.

• pregnancy and childbirth: It is not direct sex discrimination to give special treatment to a woman in connection with her pregnancy or childbirth, even if this means treating them better than their male co-workers (section 13(6)(b) EA 10). However, any preferential treatment of a woman to take account of being disadvantaged by pregnancy or maternity leave must be no more than is “necessary and proportionate” to eliminate the disadvantage (Eversheds Legal Services Limited v de Belin [2011] UKEAT0352).

• genuine occupational requirement: There is an exception in the EA 10 where having (or not having) a protected characteristic is an essential requirement for a particular job. This exception is very narrowly interpreted. For example:

◊ an acting role might need to be performed by someone of a particular sex or race;

◊ where it is important to maintain privacy and decency (for example, the need for a female attendant in women’s changing rooms); or

◊ where a personal service is provided, for example, support for women in a refuge who have suffered domestic violence.

In Etam v Rowan [1989] IRLR 150, the EAT did not accept that it was necessary to employ a woman in a clothes shop just because a small part of the duties involved entering the changing rooms.