Less favourable treatment 


Less favourable treatment is some disadvantage suffered, 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.” It is a comparative test. The treatment must be less favourable than that given to a comparable individual (real or hypothetical) because of a protected characteristic.


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:


Whether or not someone’s motivation is well-meaning is irrelevant when deciding whether their behaviour is discriminatory. What matters is whether the behaviour was due at least in part to a protected characteristic. 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, the discriminator’s motive can still be significant. For example, deliberate discrimination can lead for a larger award of compensation for injury to feelings (see page 257). 


The fact that an employer has a serious and genuine motive for their discriminatory behaviour can sometimes prevent that behaviour amounting to a fundamental breach of contract capable of justifying a claim for constructive dismissal. Here is a good example: