Direct Discrimination

The Equality Act 2010 prohibits direct and indirect discrimination as well as failure to make adjustments.  There is also now protection from ‘discrimination arising from a disability’; discrimination for something that happens because of your disability.  If you need more leave or have other needs different to other employees your employer cannot treat you unfavourably.Employers can enquire about health or disability before giving you a job at the interview, but only if there is a good reason.

Direct discrimination is obvious discrimination.  Maxwell v The Commissioner of Police of The Metropolis: recent direct discrimination; gay black man subjected to abuse.

This is a part of direct discrimination that has been more formally recognised in the Equality Act.  Though, was recognised before the Act in Coleman v Attridge Law.  It is defined as direct discrimination against a person because they associate with a person possessing a protected characteristic.  It applies to race, religion, sexual orientation, age, disability, gender re-assignment and sex.  The government widely publicised this recognition because it means that carers of disabled people are protected.

This is another type of discrimination recognised by the Equality Act.  Perceptive discrimination=direct discrimination against a person because people think they own a protected characteristic.  E.g. refusing someone a job because it is thought they are gay, but they are not actually gay.  It applies to all protected characteristics bar pregnancy and maternity, marriage and civil partnership.

The Act has widened protection against direct discrimination be setting down principles of associative and perceptive discrimination.  It means you don’t have to have a protected characteristic yourself to be protected from discrimination.

·         Objective Justification: Age is different from other protected characteristics; direct discrimination on the basis of age can be justified if it is shown to be a proportionate means of achieving a legitimate aim (i.e. health and safety, training requirements).  Employers can make a decision to not hire or to end a contract because of a person’s age is it is a proportionate means of achieving a legitimate aim, as in Seldon v Clarkson, Wright and Jakes

·         Occupational Requirements: Where it is shown that only someone with a particular characteristic can do a specific job, such as in acting the role of Othello; the actor must be black. 

Must be shown that in regard to nature and context of work that;

o   It is an occupational requirement

o   The application of the requirement is a proportionate means of achieving a legitimate aim; AND

o   The person to whom the requirement is applied doesn’t meet it. OR

o   The employer has reasonable grounds for not being satisfied that the person meet it (Schedule 9 part 1)

Armed Forces: The Equality Act allows the armed forces to discriminate against women and transsexuals if it is proportionate means of ensuring the combative effectiveness of the forces.

Disability: S.13(3): treating a person with a disability more favourably doesn’t amount to discrimination to those without a disability.

Pregnancy: S.13(6) no account is to be taken in sexual discrimination cases of any special treatment given to a woman in  connection with pregnancy or childbirth.

Does affect protection, but exceptions are narrow and limited in their application.  Not easy to argue successfully.  Some limitations to direct discrimination: It only addresses the most obvious forms of discrimination.  Most discrimination is not obvious, such as in indirect discrimination.