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). 


For a decision to be discriminatory, the decision-maker must be motivated at least in part (even subconsciously), by the protected characteristic (for example, the claimant’s age or disability). The fact that other managers earlier on in the decision-making process were influenced by discrimination, for example, investigation officers or HR managers, will not make a decision discriminatory if the decision-maker was free from discriminatory motives (CLFIS (UK) Limited v Dr Mary Reynolds [2015] EWCA Civ 439, Gallop v Newport City Council [2016] UKEAT/0118/15/DM). 


If a member suspects discrimination at earlier stages of the decision-making process, for example, during an investigation or a redundancy scoring exercise, consideration can be given to joining the discriminatory managers as co-respondents in any tribunal claim, alongside the employer. Employees can use Acas Guidance: Asking questions about discrimination (www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf) available from the Acas website, to help find out how the decision was made and who influenced it at the various stages.