What is the difference between direct and indirect discrimination?

What is direct discrimination?

Under the Equality Act 2010 (EqA 2010), direct discrimination occurs where an employer or organisation treats someone less favourably because of their age, disability, gender, sexual orientation, marital status, pregnancy or maternity, race, religion or belief, or sex. These attributes are known as protected characteristics.

You do not have to have a protected characteristic to be directly discriminated against. It can also occur if someone treats you unfairly because they think you have a protected characteristic (direct discrimination by perception), or if you are treated less favourably because a colleague, associate, family member or friend has a protected characteristic (direct discrimination by association).

An obvious form of direct discrimination is where a female employee, who has the best qualifications and the most experience, is denied a promotion and the job is given to a less qualified male candidate. Other examples include sacking someone because of a protected characteristic, refusing to interview or train them, or giving them worse employment terms and conditions.

Is there any defence to direct discrimination?

When dealing with direct discrimination the law simply looks at the end effect of the actions. Therefore, there is no argument from an employer or another individual that it was not their intention to discriminate. On the basis of age, however, employers may have an objective justification defence if, for example, they give older workers a better redundancy deal, as this would reflect the extra difficulties older workers face when losing their jobs.

What is meant by indirect discrimination?

Indirect discrimination occurs where a policy of an employer or organisation applies to everybody but results in people with certain protected characteristics (eg, race or gender) being put at a disadvantage.

Examples of indirect discrimination

The following are possible examples of indirect discrimination:

  • an employer failing to allow time off for religious holidays or observance – indirect discrimination on grounds of religion or belief;
  • an organisation failing to provide gender appropriate services – indirect discrimination on the grounds of sex;
  • a shop only allowing people in work to pay for goods in installments – indirect discrimination on the grounds of age.

Is there any justification for indirect discrimination?

If as a result of an individual business’s practices there is a difference in the quality of treatment that some people receive, it may be able to argue that the practice is objectively justified – ie, that it is a proportionate means of achieving a legitimate aim.

Proportionate means of achieving a legitimate aim

A legitimate aim is the reason behind the discrimination. This must not be discriminatory in itself and it must be a genuine reason. To be proportionate it must be appropriate and necessary when weighed against the discrimination that results. If there is a better, less discriminatory way of achieving the same aim, it is less likely to be justified.

Legitimate aims could include the health and safety of individuals, the efficiency of running a service or specific business requirements. A desire to make more money would not be justification on its own, but costs can be taken into account as part of the justification if the employer/organisation can show there are other good reasons for their actions.

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About the Author

Nicola Laver LLB

Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.

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