Direct discrimination at work: HR guide

The COVID-19 ‘new normal’ working environment is one in which employers must take every possible step to safeguard the wellbeing of their staff, or risk being in breach of their statutory duty to protect the health, safety and welfare of their workforce.

In taking action to meet your health and safety duties, employers should also ensure they do not treat any employee less favourably because, for example, they are pregnant or suffering from a disability.

Below we look at examples of direct discrimination within the workplace and how employers can take a proactive approach to reducing the legal risks of direct discrimination in the context of the new workplace normal.

What is direct discrimination?

Direct discrimination in the workplace refers to where an employer treats an employee less favourably because they possess a protected characteristic.

The Equality Act 2010 defines nine different protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

In most cases, unfair or less favourable treatment by reason of any one of these characteristics will be classed as unlawful discrimination, where direct discrimination can occur in the following three different ways:

• Because of a protected characteristic that an employee possesses, otherwise known as ordinary direct discrimination
• Because of a protected characteristic that an employee is thought to possess, ie; discrimination by perception
• Because of a protected characteristic possessed by someone who an employee is associated with, ie; discrimination by association.

This means that direct discrimination can be because of who an employee is, who the employer thinks they are, regardless of whether or not this perception is correct, or because of someone the employee is associated with, as long as the unfair treatment is directly because of the protected characteristic.

By law, an employer is under a duty not to treat an employee less favourably by reason of any one of the protected characteristics. Essentially, this means that employees are protected from unfair treatment, either because they possess a protected characteristic, or by perception or association.

It doesn’t matter if an employer doesn’t realise they were treating an employee unfairly, or didn’t mean to discriminate against them. If someone is treated differently because of a protected characteristic, and that person is worse off because of it, it still amounts to direct discrimination.

For a valid comparison to be made, the employee’s circumstances must be similar enough to those of another employee being treated better. This is known as a comparator, ie; someone else who does not possess the same protected characteristic, against whom to measure the less favourable treatment.

That said, even if it is not possible to point to someone else, it is still direct discrimination if it can be shown that a person who did not have the individual’s protected characteristic would have been treated better in similar circumstances. In other words, by looking to a hypothetical comparator.

No minimum length of employment is required to claim unlawful discrimination, where it is potentially unlawful to discriminate against someone from the point of recruitment right through to retirement, and even post-termination when providing a reference.

What is the difference between direct and indirect discrimination?

Direct discrimination is where you treat someone less favourably because of a protected characteristic, whereas indirect discrimination is where you treat someone the same as everyone else, but this still has an unfavourable effect on them. Indirect discrimination is essentially where the application of a provision, criterion or practice puts, or would put, those employees who possess a protected characteristic at a disproportionate disadvantage when compared to others who don’t share that same characteristic.

Indirect discrimination can apply to all sorts of different policies, procedures, requirements, rules and arrangements in the workplace, where if you equally apply a particular policy or practice to everyone, you may inadvertently place someone with a particular characteristic at a disadvantage.

For example, requiring all employees to come into the workplace rather than work from home would have a greater impact on those who at greater risk of being severely impacted by infection, such as the disabled, older or pregnant staff, or even ethnic minority employees due to the possible disproportionate impact of coronavirus.

To enforce a blanket policy in these circumstances could be classed as indirect discrimination, unless it can be objectively justified. This means that you must be able to prove that any ‘provision, criterion or practice’ implemented at work is a proportionate means of achieving a legitimate aim for the business, or, to put it another way, that it is appropriate and necessary.

Examples of direct discrimination in the workplace

The law protects an employee against direct discrimination in any of its three forms in the workplace in the context of various different scenarios. This includes recruitment, employment terms and conditions, pay and benefits, training and promotion, performance management, dismissal and redundancy.

In the current COVID-19 climate, common examples that may give rise to direct discrimination could include decisions that have been made around choosing who to furlough or unfurlough, managing remote working, asking employee’s to return to the workplace and selection for redundancy.

It would, for example, be discriminatory to ask a female employee working from home to check in with their line manager more frequently than a male employee because of an assumption that the woman is more likely to be ‘distracted’ with childcare responsibilities.

It would also amount to unlawful discrimination to select for redundancy those vulnerable to serious illness if they contract coronavirus. In fact, in the context of health and safety issues, there are various potential matters that may now arise in the workplace, especially where an employee refuses to return to work because of a fear that they may contract the virus.

Indeed, in cases where an employee is suffering from a medical condition that categorises them as vulnerable, or they are living with someone who is shielding, you should tread extremely carefully if you are considering imposing any disciplinary sanctions or making a decision to dismiss. This could, potentially, amount to an unlawful detriment and/or automatically unfair dismissal, as well as unlawful disability discrimination.

You should also exercise caution where an employee suffering from any pre-existing mental health condition, especially anxiety or depression, might be more affected by a fear of contracting coronavirus if asked to return to work. Under the 2010 Act, a disability includes both physical and mental impairments.

Can direct discrimination ever be justified?

There are limited circumstances in which different treatment by reason of a protected characteristic may be lawful, although only direct discrimination in relation to age and arising from a disability can ever be objectively justifiable.

However, to justify direct discrimination you must be able to demonstrate that the difference in treatment was a proportionate means of achieving a legitimate aim. For example, an employer could potentially have an upper age limit on a job that requires extremely high levels of fitness and physical exertion.

If an employee is treated less favourably due to any one of the other protected characteristics, this will amount to unlawful direct discrimination, regardless of whether or not there was a good reason for this. It is also worth noting that it is unlawful to ‘positively’ discriminate in the workplace, although you can take ‘positive action’ in certain cases.

For example, you may also be able to take positive action to support employees or prospective employees who possess a particular characteristic, such as from a particular age group or ethnicity, if you can show reasonable evidence that they are either at a disadvantage or are under-represented in your business, or have other specific needs because of that characteristic.

In these circumstances, as long as any positive action will not discriminate against others, you can take proportionate steps to remove any barriers or disadvantages, or provide support and training, to increase the participation of those with a particular protected characteristic.

Duty to make reasonable adjustments

Specifically in relation to employees who suffer from a disability, as an employer you are under a legal duty to make reasonable adjustments to remove any disadvantage suffered by that person in undertaking the job role in question.

The law also states that it is not considered direct discrimination if you treat a disabled person more favourably than a person who is not disabled. This means that non-disabled employees are unable to claim discrimination on the grounds they have been treated less favourably because of any reasonable adjustments given to a disabled co-worker.

You must consider making reasonable adjustments either where the individual has asked for adjustments to be made, they are having difficulty with any part of their job, where their sickness record or delay in returning to work is clearly linked to their disability, or you have otherwise been made aware of a disability.

Examples of reasonable adjustments for an existing employee in the current COVID-19 climate might include changes to working arrangements, such as allowing remote working for someone who has been medically advised to shield, or the provision of suitable personal protective equipment.

It is still open to you to dismiss an employee on the grounds of capability where they have been on long-term sick leave, although you must be able to objectively justify any dismissal, including why reasonable adjustments could not be made.

Avoiding discrimination claims

If you treat an employee less favourably by reason of a protected characteristic, you may find yourself facing a complaint before the employment tribunal for unlawful discrimination under the 2010 Act. The damages in the context of a discrimination claim are uncapped, so the consequences here can be significant.

Where you have dismissed or made redundant an employee for a reason connected with a protected characteristic, you may also be subject to a claim for unfair dismissal. In either case this can again result in an award of compensation being made against you, as well as an order to reinstate your former employee.

Equally, any failure to make reasonable adjustments in the workplace to ensure that an employee is not substantially disadvantaged in performing their job compared with non-disabled people may be regarded as unlawful.

In summary, the legal, practical and financial consequences for your company or organisation can be serious, especially in cases of unlawful discrimination, and expert legal advice from an employment law specialist should always be sought.

Direct discrimination FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.