Direct discrimination - a guide for employees
Direct discrimination solicitors
If you have been treated unfairly at work or you have been unfairly dismissed then you may have an Employment Tribunal claim. Taking advice from an experienced employment lawyer early in the process provides you with the best options to bring the claims.
Read our guide on Employment Tribunal claims below
Other relevant guides
Race discriminationSex discriminationDisability discriminationHarassment at workVictimisation at workSexual harassment at workWhat is direct discrimination?
Direct discrimination occurs when an employer treats an employee less favourably because of a protected characteristic that the employee, or someone else, possesses.
Direct discrimination is unlawful under section 13 of the Equality Act 2010 and applies to all aspects of employment, including recruitment, promotion, pay, and dismissal.
What are protected characteristics?
The Equality Act 2010 outlines nine protected characteristics:
- Age discrimination
- Disability discrimination
- Gender reassignment discrimination
- Marriage and civil partnership discrimination
- Pregnancy and maternity discrimination
- Race discrimination
- Religion or belief discrimination
- Sex discrimination
- Sexual orientation discrimination
If an employee experiences unfavourable treatment due to any of these characteristics, they may have grounds to pursue a legal claim for direct discrimination.
What is less favourable treatment?
To succeed in arguing direct discrimination, an employee must demonstrate that they were treated less favourably than a comparator without the protected characteristic in similar circumstances – this comparator can be:
- An actual comparator: someone that you can point to within the organisation, who does not possess the particular protected characteristic, that has experienced better treatment than you in similar circumstances
- A hypothetical comparator: where you can’t point to an actual comparator, you can create a ‘hypothetical’ person who doesn’t possess the protected characteristic and would have been treated better than you in similar circumstances
This comparison helps establish whether discrimination occurred and supports legal claims.
Employers can defend a claim for direct discrimination if they can show that they took reasonable steps to prevent the discriminatory conduct in question (for example, if they undertake training on how to prevent discrimination or bullying in the workplace, implement equality and diversity policies, and take steps to support employees who have been subjected to discrimination in the workplace).
Types of direct discrimination
Ordinary direct discrimination
This occurs when an individual is treated less favourably directly because of a protected characteristic. For example, if an employer refuses to promote an employee because they are pregnant, this may constitute ordinary direct discrimination.
Discrimination by association
Discrimination by association arises when someone is treated unfairly due to their connection with another person who has a protected characteristic. For instance, if an employee is treated differently because they care for a disabled family member, this could be discrimination by association.
Discrimination by perception
This occurs when an employer discriminates against an individual based on a mistaken belief that they possess a protected characteristic. For example, if an employer refuses to hire someone because they believe the applicant is gay (regardless of whether they are), this could constitute discrimination by perception.
Recognizing direct discrimination in the workplace
Examples of direct discrimination
Direct discrimination can manifest in various ways, including:
- Refusing to hire someone based on their race or religion
- Denying a promotion due to gender
- Paying employees differently for the same work because of their age
- Firing an employee because they are transitioning gender (this could also lead to a claim for unfair dismissal)
These examples highlight how direct discrimination can impact an individual’s career and workplace experience.
Overview of the Equality Act 2010
The Equality Act 2010 is the primary legislation protecting employees from discrimination in the workplace. It ensures that all employees receive fair treatment and provides legal recourse for those who experience discrimination. The Act covers recruitment, employment terms, promotions, training, and dismissals.
Employer responsibilities and vicarious liability
Employers have a legal duty to prevent discrimination in order to try and create an inclusive workplace. This responsibility extends to ensuring that employees do not discriminate against colleagues.
Under vicarious liability, employers may be held accountable for discriminatory actions by their staff, undertaken in the course of employment, unless the employer can demonstrate they took reasonable steps to prevent the behaviour in question.
Addressing direct discrimination
Steps to take if you experience discrimination
If you believe you are a victim of direct discrimination, follow these steps:
- Document the discrimination: Keep records of incidents, including dates, times, and witnesses.
- Report the issue: Raise the matter with your employer through internal grievance procedures (further reading: grievances in the workplace)
- Seek advice: consult with trade unions, legal professionals, or advisory bodies like ACAS for guidance.
- Consider legal action: If the issue remains unresolved, you may pursue a claim in the Employment Tribunal. Claims must generally be filed within three months of the discriminatory act and you should go through the ACAS Early Conciliation process before issuing a claim
Seeking legal advice and support
Legal support is crucial when addressing direct discrimination. Employees can seek assistance from various sources:
- Acas (Advisory, Conciliation and Arbitration Service): Provides free, impartial guidance on employment rights.
- Citizens Advice: Offers free advice on discrimination claims.
- Employment Lawyers: Specialized legal professionals who can assist with tribunal claims and negotiations.
Understanding your rights and taking appropriate action empowers you to challenge discrimination effectively and seek fair treatment in the workplace.
Compensation for direct discrimination
If you are successful in a claim for direct discrimination in the Employment Tribunal you can seek the following financial remedy (among others):
- Compensation for loss of earnings: to be reimbursed for any past or future loss of earnings that you’ve suffered as a result of the discrimination (for example, loss of basic salary, commission, bonus etc.)
- Injury to feelings: compensation for the hurt that you’ve suffered as a result of the discrimination in question, based on the ‘Vento guidelines’
- Personal injury: compensation for an injury (normally a mental injury) caused as a result of the discrimination
- ACAS uplift: compensation can be increased or decreased by up to 25% to account for a failure to follow the ACAS Code of Practice on Grievances and Disciplinaries
Settling a claim for direct discrimination
If you’ve suffered direct discrimination at work then you may wish to consider trying to settle your potential Employment Tribunal claim with your employer. Your employer may make an offer of settlement to you (also known as a without prejudice offer) but, if they do not, you can go to your employer and make a settlement offer yourself.
Further reading:
Contact our employment solicitors
Our employment lawyers are experts in dealing with Employment Tribunal claims and advising on employment disputes.
Tessa Harris supervises our employment law team and has extensive experience in advising employees on employment claims, Employment Tribunal proceedings, and settlement agreements.
Speak to Tessa today to discuss your situation.
