October 12, 2018

Under the Equality Act 2010, a person can be discriminated against if they are treated less favourably due to a certain attribute or attributes that they possess. These attributes must fall under one of the protected characteristics as listed in the Act.

The protected characteristics are:

  • Age
  • Sex (gender)
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sexual orientation

Less favourable treatment is an employee being treated indifferently, in a detrimental way to another employee who does not share the same protected characteristic. In order to show direct discrimination, the detrimental treatment must be compared to the treatment of another employee who does not share the relevant protected characteristic.

This employee is known as the comparator. The two situations need not be identical, but there should be sufficient similarities to demonstrate direct discrimination. The comparator does not need to be a real person, a hypothetical comparator can be used if the situation has not previously arisen in the workplace.

It is not always necessary for an employee to provide evidence of a comparator if it is obvious that the mistreatment occurred because of the protected characteristic.

There are two situations in which direct discrimination can be justified, namely:

The discrimination will only be justified if it can be shown that it was a proportionate means of achieving a legitimate aim. A legitimate aim is the underlying reason behind the discrimination and can include aims such as:

  • Health, safety and welfare of individuals
  • Business requirements
  • Economic reasons

For the aim to be proportionate, it must have been carefully considered against the discrimination it would cause and must be necessary and appropriate.

It is very difficult to justify direct discrimination, and it is recommended that you seek specialist legal advice.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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