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what is direct discrimination

What Is Direct Discrimination? Everything You Need To Know

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what is direct discrimination

What is direct discrimination? Direct discrimination occurs when a person is treated unfairly as a result of their protected characteristics. This could be their sex, a disability or their religion or belief. Direct discrimination can also occur when someone believes that a person holds a protected characteristic, even if they don’t, or as a result of a person’s connection to someone that holds a protected characteristic.

In this article, we’ll explain direct discrimination in more detail, as well as providing a few examples of where direct discrimination could apply. We’ll also explore how you can take proactive steps to prevent discrimination in your workplace.

Direct Vs Indirect Discrimination

When you think of discrimination, it’s easy to assume that there is just one type. However, there are actually several different types of discrimination. The main two types of discrimination are direct and indirect discrimination, and it’s important that you understand both of these types of discrimination, so that you can identify different situations where discrimination could arise in the workplace.

Let’s take a look at both direct and indirect discrimination, to give you a clear understand at each of these types of discrimination.

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Direct Discrimination

Direct discrimination is the most well-known type of discrimination, and it’s probably the type that first springs to mind when someone mentions the term ‘discrimination’.

This type of discrimination occurs when a person is treated unfairly or unequally as a result of their protected characteristics. For example, this could be their race, their marital status or because they are pregnant.  

However, direct discrimination can also occur where someone believes that a person has a protected characteristic (even when they don’t), or if the discrimination is a result of a person’s relationship or connection to another person that holds a protected characteristic.

To prove direct discrimination in the workplace, it will need to be proved that a person that did not hold the protected characteristic would have been treated differently in similar circumstances.

Indirect Discrimination

Whilst not talked about as much as direct discrimination, indirect discrimination should be taken equally as seriously in the workplace.

This type of discrimination occurs when a policy, practice or rule is put in place that applies to everybody in the workplace but disadvantages a certain group of people who hold a protected characteristic. In contrast, it will not disadvantage the people who do not hold the protected characteristic in the same way. The discrimination does not need to be intentional to be classified as indirect discrimination.

There are some circumstances where indirect discrimination can be lawful. For this to apply, the organisation would need to prove that there is a good reason for the policy to be in place. For example, for essential health and safety reasons. This is known as objective justification.

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Who Can Be Discriminated Against

Who Can Be Discriminated Against?

Discrimination relates to the unjust, unequal, or unfair treatment of a person as a result of a protected characteristic that they hold. But what exactly is a protected characteristic?

There are nine protected characteristics in UK law, which are set out in the Equality Act 2010. These are:

If a person is treated unfairly as a result of holding one of these protected characteristics, they have been a victim of direct discrimination. Alternatively, if a policy is put in place that disproportionately affects a group of people that share a protected characteristic, they are a victim of indirect discrimination.

Examples Of Direct Discrimination In The Workplace

There are many different situations in which direct discrimination can happen within the workplace. This could be within the recruitment process, when deciding upon redundancies or when allocating training and promotions.

Here are just a few examples of how direct discrimination could take place in the workplace.

  • Ayshia has a disability that means she uses a wheelchair. She applies for a job as a receptionist in her local leisure centre and her application is rejected as a result of her disability. The business could be discriminating directly, based on disability.
  • John is told that he is in line for a promotion at work. That weekend, he is shopping with his partner Alex and encounters his manager. The next day, John is not invited for an interview for the promotion, and it is awarded to a less experienced colleague. This could be direct discrimination, based on sexual orientation.
  • Miriam is a salesperson and informs their manager that they have decided to make the transition to live as a male. Miriam is told the next day that they are being moved to a non-client facing role. This could be direct discrimination, based on gender reassignment.

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Examples Of Indirect Discrimination In The Workplace

Indirect discrimination occurs when a policy or rule is put in place that disproportionately affects one group of people who share a protected characteristic. It isn’t always easy to understand what constitutes indirect discrimination, so it’s always best to consult a HR expert before putting a new policy in place, especially if you’re unsure.

Here are some examples of how indirect discrimination could occur in the workplace.

  • An organisation is recruiting for a new head of marketing. The job is only advertised internally, where the only people that could apply are all men. This means that the organisation could be indirectly discriminating based on sex.
  • A business creates a job advert that states that applicants must have at least 10 years of experience in the IT industry. This means that the organisation is excluding younger people who may have the required skills and experience but are not old enough to have gained 10 years of experience. The business could be discriminating indirectly based on age.
Types Of Direct Discrimination

Types Of Direct Discrimination

Within the overarching category of direct discrimination, there are some subcategories you should be aware of. These are discrimination by association and discrimination by perception. Whilst both of these are types of direct discrimination, they do have some slight differences that it is important to understand.

Discrimination By Association

Discrimination by association occurs when a person is discriminated against as a result of their relationship or connection to a person that holds a protected characteristic. So, the discrimination doesn’t occur because of a protected characteristic that the victim holds, but the protected characteristic of someone with whom they are associated.

For example, an employee is disciplined because they needed to take time off work to care for their disabled child, whilst other employees who have taken similar amounts of time off work have not been disciplined. This is direct discrimination by association, due to the protected characteristic of disability that the child holds.

Discrimination By Perception

Discrimination by perception occurs when a person is discriminated against as a result of a protected characteristic that you are assumed to possess. So, you don’t have a protected characteristic, but someone assumes that you do and treats you unfairly as a result.

For example, if a landlord refuses to rent a house to someone that he assumes is gay. This would be direct discrimination by perception, as sexual orientation is a protected characteristic that is outlined in the Equality Act.

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Who Is Liable For Discrimination In The Workplace?

If discrimination occurs in the workplace, you might be wondering who is liable for this: the employee who committed the act of discrimination or the employer.

Both employers and employees can be liable for discriminative acts in the workplace. This means that both the employee that carried out the act of discrimination and the organisation as a whole could find themselves with a claim for discrimination in the workplace being brought against them.

There are some instances where the employer could find themselves liable for the behaviour of their employees, even if the employer itself has not discriminated against anybody. This is referred to as vicarious liability. To avoid vicarious liability, an organisation would need to prove that they took every reasonable step possible to prevent discrimination in the workplace.

If a claim is brought for discrimination, there will usually be a claim for ‘injury to feelings’. The amount that can be awarded by the judge is uncapped, meaning that the judge can decide on the level of compensation that should be paid by the employee or the organisation on a case by case basis.

Preventing Discrimination In The Workplace

Preventing Discrimination In The Workplace

The most effective way to protect your organisation from discrimination claims, as well as ensuring that your company is a fair and equal place to work, is to take all reasonable steps to prevent discrimination in the workplace. Not only will this ensure that your employees feel valued and respected in the workplace, but it could also help your business to avoid a potentially costly claim for discrimination later down the line.

Here are just some of the ways that you can prevent discrimination in your workplace:

  • Ensure that you have an up to date equality policy, and that this is regularly reviewed
  • Conduct regular anti-discrimination training with all staff
  • Have a clear policy in place for reporting discrimination at work
  • Ensure that any complaints relating to discrimination are taken seriously and that the correct procedure is followed
  • Use standardised criteria during the recruitment process, as well as when selecting employees for training, promotion or redundancies, to ensure that unconscious bias doesn’t impact the process

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Can You Justify Direct Discrimination?

You might be wondering whether there is any situation where direct discrimination can be legally justified.

The only type of direct discrimination that may be justified in certain circumstances is age discrimination. The Equality Act states that an employer is not discriminating against an employee if they can prove that the act was a ‘proportionate means of achieving a legitimate aim’.

For example:

  • A film production company would not be acting unlawfully if they refused to hire an adult to play Matilda.
  • A restaurant is not acting unlawfully by offering cheaper prices at lunchtime for over 60s.
  • A GP surgery would not be acting unlawfully by offering flu jabs to over 65s.
  • An employer is not acting unlawfully if they have a compulsory retirement age that can be clearly justified due to the requirements of the job role.

Related Questions

How Do You Prove Indirect Discrimination?

Indirect discrimination can be difficult to prove. However, the criteria for indirect discrimination to apply means that there is a policy that is applied equally to everyone in an organisation, but unfairly disadvantages people that hold a specific protected characteristic.

When Can An Employer Legally Discriminate?

There are limited situations in which an employer can legally discriminate. The only time that direct discrimination may be justified is in relation to age, providing it is a proportionate means of achieving a legitimate aim. So, there would need to be a justifiable reason why age must be considered, for example for health and safety, the efficient running of the business or to meet a legitimate business requirement.

In Summary

Direct discrimination occurs where a person is treated unfairly or put at a disadvantage as a result of a protected characteristic, such as disability, age, religion or sexual orientation. This type of discrimination is unlawful in the majority of cases, although there are some instances where direct age discrimination can be justified.

In this article, we have answered the question ‘what is direct discrimination’, as well as exploring the different types of discrimination in more detail. We have also outlined practical steps that you can take to prevent discrimination in your organisation.

If you need help putting together an equality policy, preventing discrimination in your organisation or building your reputation as an equal opportunities employer, we’re here to help. Get in touch with us today to find out more about how our HR and employment law experts could support your business.

Looking for more information about discrimination in the workplace?

Fill out our contact form or call us on 0808 281 9856

About The Author.

James Rowland

James Rowland

James is the Commercial Director at Neathouse Partners. He is responsible for all Account Management, Sales & Marketing within the company. Having gained a BSc in Psychology and further study for his post-grad Law degree, James embarked on his legal career in 2014. Since then, he has become an Associate Director at a national Employment Law boutique, studied for a Masters in Marketing, and as of 2018, been a Director at Neathouse Partners. Outside of the office, James is a keen cricketer, playing very badly (he calls himself a Batsman but averages single figures) in the Cheshire League for Nantwich CC. He also loves watching his childhood football team, Crewe Alexandra, and is an avid lover of cinema (his favourite film being Pulp Fiction). Feel free to connect with James on LinkedIn.

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