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 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. However, 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 if the reasons for a decision are subconscious and ingrained rather than conscious and deliberate (Nagarajan v London Regional Transport [2000] 1 AC 501).


There can only be direct discrimination if the person who engages in the less favourable treatment is influenced at least in part (consciously or subconsciously), by the protected characteristic (for example, a claimant’s sex, race or disability). There can be no discrimination if a decision-maker is free from discriminatory motives, even if other managers earlier on in the decision-making process – such as investigation officers or HR managers – were motivated by discrimination (CLFIS (UK) Limited v Dr Mary Reynolds [2015] EWCA Civ 439). 



For this reason, a claim for direct disability discrimination cannot succeed if the person who treats the claimant less favourably does not know that he or she is disabled (Gallop v Newport City Council [2016] UKEAT/1008/15/DM).There can only be liability if the person accused of discrimination knew of and was influenced in some way by the protected characteristic – in this case, disability.The knowledge of others, such as an occupational health professional, cannot be “imputed” to the decision maker.


This ruling contradicts the EHRC Employment Code of Practice. Paragraph 5.17 of the Code says that if an employer’s internal occupational health adviser or an HR officer knows about a person’s disability, the employer cannot normally claim not to know. This is no longer an accurate statement of the legal position as regards direct disability discrimination (the position is different where the claim is for reasonable adjustments, or is based on unfavourable treatment linked to disability – see page 251).



If managers at earlier stages of the decision-making process, for example, during an investigation or a redundancy scoring exercise, are motivated by the presence of a protected characteristic – such as race or disability – they can be held liable for direct discrimination (or if appropriate, harassment or victimisation) in any tribunal claim as co-respondents, alongside the employer (see page 285).


Employees can use Acas Guidance: Asking questions about discrimination, available from the Acas website, to help find out how the decision was made and who was involved at the various stages.