How to Identify Direct Discrimination in the Workplace

Every business must take the proper steps towards ending discrimination.

Direct discrimination is one form mentioned under the Equality Act. Often, an employer won’t know about these issues until it’s too late.

You shouldn’t underestimate how important it is to deal with direct discrimination. If you ignore this, you could face huge consequences. These include legal claims, hefty fines, and losing staff.

In this guide, we'll look at what direct discrimination is, what the law says, and how to protect your employees from it.

What is direct discrimination?

Direct discrimination is when a person is treated unfairly due to a ‘protected characteristic’.

There are nine different forms named under the Equality Act 2010. The act states you cannot directly discriminate against:

• Age.
• Disability.
• Gender reassignment.
• Marriage and civil partnership.
• Pregnancy and maternity.
• Race.
• Religion and belief. 
• Sex.
• Sexual orientation.

Employers have a legal duty to deal with discrimination at work. But this legal right isn’t only for employees. It also applies to applicants and trainees, too.

Are there different types of direct discrimination?

Yes, there are different types of direct discrimination, but they all have their own legal needs. Let’s look at different types of direct discrimination:

Direct discrimination

This is when a person is treated less favourably due to a protected characteristic.

Discrimination by perception

This is when you 'think' a person has a protected characteristic. For example, you think an employee has specific religious beliefs and treats them differently because of this. (This is a personal perception and may not be true).

Discrimination by association

This is when a person is treated less favourably due to links with other people. It also includes association with groups like trade unions.

What is the law on direct discrimination?

The Equality Act 2010 clearly defines what counts as unlawful discrimination.

An employee may raise an unlawful discrimination claim at any time. Maybe they faced unfair treatment or had their protected characteristic rights breached. Under employment law, this legal right applies from an employee’s recruitment days, to their last.

Every employer needs to take reasonable steps when faced with a discrimination claim. This means going through the issue and looking for ways to resolve it.

It doesn’t matter if you weren’t aware of the issue before. Employers can still be guilty of unlawful discrimination (according to the Equality Act 2010). So, deal with the claim as soon as you can.

For example, a pregnant worker asks for more sick leave. Here, reasonable adjustments don't count as ‘favourable treatment’. That’s because protected characteristics apply.

Employers should support pregnant employees during work. Making reasonable adjustments will help reduce any unfair disadvantage they could face at work. If ignored, employees could raise an pregnancy, or disability discrimination claim.

Remember, the law covers all protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex, sexual orientation.

Can an employee raise direct discrimination claims?

Yes, any kind of employee or worker can raise direct discrimination claims.

Employees can raise them, but they’ll need to prove they were discriminated against. Meaning their employer ignored their protected characteristics.

They may decide to raise it to an employment tribunal (ET). Judges will go through the case and look for evidence of unlawful direct discrimination.

If an employer is found guilty, they could face huge fines. Not to mention, their business could suffer from brand damages.

Is direct discrimination ever allowed?

It's worth noting not all unfair treatment leads to unlawful discrimination claims. There might be a legitimate aim behind a discriminatory act.

This is called ‘objective justification’. The law can allow them because they’re necessary or for a good reason.

For example, an employer asks all workers to wear helmets, as it’s a health and safety practice. This rule could discriminate against those who wear religious headgear, like turbans or headscarves.

But the employer has a 'proportionate means of achieving a legitimate aim'. The rule also applies to everyone working in similar circumstances. So, it doesn't count as unlawful treatment.

Examples of direct discrimination in the workplace

You can find unlawful discrimination in any area of your business. That’s why it’s up to the employer to keep every protected characteristic safe.

Let's look at direct discrimination examples:

Age discrimination

This is when a person is treated less favourably because of their age group. Like, not promoting an employee due to their young age. 

It’s not just younger employees that face age discrimination. Older people can also suffer from age discrimination as well.

Disability discrimination

This is when someone receives less favourable treatment because of their health. A disabled person can suffer from a physical and mental disadvantage. Like, disciplining someone for missing work to care for their disabled child.

Gender reassignment discrimination

This is when a person is treated differently because they're transgender. Like, a job advert that rejects anyone who shares their gender reassignment.

Marriage and civil partnership discrimination

This is when someone receives less favourable treatment because of their marital status. Like, giving single employees more work hours because they have less family commitments.

Pregnancy and maternity discrimination

This is when a person is treated differently because they're pregnant or have recently given birth. Like, denying a pregnant employee a pay rise because they'll get maternity pay soon.

Race discrimination

This is when someone receives less favourable treatment because of their ethnicity. Like, not hiring foreign workers (even if they have the proper work documents).

Religion and beliefs discrimination

This is when a person faces unlawful treatment because of their personal beliefs. Like, disciplining an employee who decides to wear a headscarf at work.

Sex discrimination

This is when someone receives less favourable treatment because they're male or female. Like, not hiring a male employee for a job as a nursery teacher.

Sexual orientation discrimination

This is when a person is treated differently because of their sexual preference. Like, firing an employee after finding out their sexuality.

How to stop direct discrimination in the workplace

Every employer must do their best to end discrimination at work.

This goes for staff-members directly affected. And those who may be a ‘hypothetical comparator’ (don’t have the same protected characteristic).

Employers have a duty of care to protect all staff members from discrimination in the workplace. This includes all types of discrimination including harassment from colleagues and third parties.

Let's look at ways to stop direct discrimination:

Create an equality and diversity policy

The first step to take is to create an equality and diversity policy.

This policy shows your promise for equal opportunities. It’ll also show how you'll action targets fairly across your workforce. Your policy can include:

• Equal opportunities for all - regardless of protected characteristics.
• What counts as being treated ‘less favourably’.
• Which legal rights apply (according to the Equality Act and other laws).
• How discrimination complaints are processed.

Use proper resolution methods

You might be able to fix a direct discrimination complaint through informal channels.

The best way to do this is by having a private chat with the employee. Let them share their concerns comfortably. Together, you’ll be able to reach a solution that suits everyone.

If this doesn’t work, you may need to hold resolution discussions. This is mostly done through mediation or conciliation meetings. Here, a neutral third party will help each side reach a mutual answer.

It's important to take each claim seriously - even if you disagree with the claims. This can help you deal with the issue in the fairest way.

Decide on a settlement agreement

Once you've discussed the issue, you may decide on a mutual outcome. This happens after proper investigations and hearings are held.

Both parties may decide on a settlement agreement they both agree to. It could be a workplace change, apology statement, or even a financial award.

Settlement agreements are only legally binding if:

• They’re presented in writing.
• They’re relevant to the claim.
• They involve an independent legal group.

If the employee still thinks they've been treated unfairly, they may decide to appeal. Advise them that they’ll need to raise this to an employment tribunal themselves.

Offer equality training

It's important to build a workplace where all employees feel comfortable. You can easily achieve this with the help of your managers.

Offering equality training can help them deal with direct discrimination, harassment, and bullying.

If an employee faces a problem at work, they will usually talk to their line-manager first. That’s why it’s ideal to invest in this work relationship.

Managers will be able to spot issues and solve them before they escalate. With their help, you're on your way towards creating a happy and healthy business.

What is the difference between direct and indirect discrimination?

There is a vast difference between direct and indirect discrimination. As mentioned, direct discrimination is when you face unlawful treatment due to a protected characteristic.

Indirect discrimination is when a work practice discriminates against one employee or group. (This form also comes under the Equality Act).

For example, a uniform policy states employees must wear knee-length skirts. This may discriminate against people who wear modest clothing for religious or personal beliefs.

It's hard to prove indirect discrimination in an employment tribunal. But as always, employees need to follow the rules on raising any type of discrimination complaint.

Remember, the laws still apply whether you discriminate directly or indirectly. And covers all protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex, sexual orientation.

Get expert advice on direct discrimination with Peninsula

When it comes to direct discrimination, you need to deal with it correctly.

Every employer should always protect staff from unfair treatment. And create a workplace that will support equal opportunities for all.

If you ignore this, it could lead to huge consequences. Like attending court and losing talented staff-members.

Peninsula offers expert advice on direct discrimination. Our HR team offers unlimited 24/7 HR employment advice which is available 365 days a year.

Want more support? Seek advice from one of our HR advisors. For further information, call our telephone number