#13953 - Direct Discrimination - Employment Law

• Unlawful discrimination in the employment field against job applicants and employees is prohibited by ss 39 and 40 EA 2010.

• Direct discrimination (s.13) occurs where the reason for a person being treated less favourably than another is due to a protected characteristic listed in s.4 of the Act.

• Indirect discrimination (s.19)

• Harassment (ss.26 & 40)

• Victimisation (s.27)

She has indicated she doesn’t want to leave. If she did, she could be able to make a claim for constructive dismissal for a repudiatory breach and a further claim for wrongful and unfair dismissal.

She is claiming she was treated less favourably because of her sex s 11. She is a woman and she has been treated less favourably than others (s 13). [EMPLOYER} treats{CLAIMANT] less favourably than or would treat others.

1. HAS C BEEN TREATED DIFFERENTLY AND’ LESS FAVOURABLY’ BECAUSE OF A PROTECTED CHARACTERISTIC?

• Gender reassignment (s.7)

• Marriage and civil partnership (s.8)

• Race (s.9)

• Religion or belief (s.10)

• Sex (s.11)

• Sexual orientation (s.12)

• Pregnancy and maternity (s.18)

Objective test as to whether the complainant would have been treated:

• differently; and

• more favourably,

had it not been because of sex, race, religion or belief, sexual orientation, gender reassignment or marital/civil partnership status.

• Less favourable treatment covers any ‘disadvantage’ (Jeremiah v MOD) [WHAT IS THE DISADVANTAGE?]

• It does not require any tangible loss (Chief Constable of West Yorkshire Police v Khan)

• A mere deprivation of choice will be sufficient to found a claim of less favourable treatment (Gill v El Vino Co)

• Less favourable treatment is for the tribunal to decide

• If an employer recruits a man rather than a woman because she assumes that women do not have the strength to do the job, this would be direct sex discrimination.

• Hilary has been asked questions relating to her family circumstances when a man may not have been and she has not been given the job that she has deputized for in the past. She believes that this is because of her sex

‘[EMPLOYEE] will need to show that they have been treated differently and less favourably because of their [PROTECTED CHARACTERISTIC]. On the facts, [EMPLOYEE] was treated less favourably…

ASSOCIATION AND PERCEPTION

• Protected characteristic listed in s 4 (save in the case of marriage and civil partnership) is broad enough to cover cases where the less favourable treatment is because of the victim’s association with someone who has that characteristic (eg, is black) (association), or because the victim is wrongly thought to have it (eg, a particular religious belief) (perception).

• If A treats B less favourably because B cares for an elderly relative, A can be held to have discriminated against B because of age, even though B’s age is not the reason for the treatment.

2. NEED ACTUAL OR HYPOTHETICAL COMPARATOR (Shamoon)

To establish less favourable treatment the claimant must be compared with that of an actual or a hypothetical person (Shamoon) – the comparator – who does not share the same protected characteristic as the claimant but who is (or is assumed to be) in not materially different circumstances from the claimant.

In [NAME] case there is [no?] actual comparator as [NAME] has different experience in the job and company (he has been there 6 months and has not worked in the same department) [any further facts?]. Where there is no actual comparator, a hypothetical comparator will normally be required (Shamoon).

[NAME] will need to use a hypothetical comparator. [She/he] will compare [his/her] treatment with a [male/female/black/white etc] employee with the same number of years and nature of experience and the same formal qualifications, [who has young children]. In order to highlight [his/her] unfavourable treatment [he/she] will argue that...