Direct discrimination
Sunday, 3 October 2021 21:17
The statutory formula:
- The Equality Act 2010 Section 13
○ 'A person (A) discriminates against another (B) if, because of a protected characteristic,
A treats B less favourably than A treats or would treat others.'
'Less favourable treatment'
- 'It is enough that the victim perceived - reasonably - that she had been treated less
favourably. - Gill v El Vino [1983] QB 425 (CA)
- A person deterred from applying for a job may be less favourably treated - Case C-54/07 Feryn
[2008] ECR I-05187 (ECJ)
The comparison
- Section 23 of the Equality Act 2010:
○ On a comparison of cases for the purposes of [direct and indirect, discrimination] there
must be no material difference between the circumstances relating to each case.
- The treatment must be less favourable rather than unfavourable - Macdonald v Advocate
General for Scotland [2003] UKHL 34
- A comparison must be made, although a hypothetical comparator may be used - Glasgow CC v
Zafar [1998] ICR 120 (HL)
- If this reason for the treatment is based on a prohibited characteristic (such as race, sex etc),
then a tribunal can 'avoid arid and confusing disputes about the identification of the
appropriate comparator - Shamoon v Chief Constable of the RUC [2003] ICR 337 (HL) (Lord
Nicholls)
- If the protected characteristic is sexual orientation, the fact that one person … is a civil partner
while another is married [to a person of the opposite sex] is not a material difference between
the circumstances relating to each case - Section 24(3) EA 2010
○ Section 23(4) EA 2010 repeats this for same sex marriage
○ See Bull v Hall [2013] UKSC 73
- You cannot change the defendant's circumstances for the comparison; only the protected
characteristic - Grieg v Community Industry [1979] ICR 356 (EAT)
Mixed ground cases
- Owen and Briggs v James [1982] ICR 618 (CA)
○ Employer gave 3 reasons for rejecting a potential employee - bad employment record,
unsatisfactory demeaner, and race
○ Court ruled that even though the employer would've come to the same decision without
race being a factor, race was a protected characteristic and so they were found to have
treated the candidate unfairly
The 'but for' test
- James v Eastleigh BC [1990] 2 AC 751 (HL) (3-2) Lord Goff (at 774 B-C)
○ 'Would the complainant have received the same treatment but for his or her sex? This
simple test possesses the … virtue that … it avoids, in most cases at least, complicated
questions relating to concepts such as intention motive reason or purpose'
○ Difference in person's retirement age due to sex caused a lawsuit when a man and a
woman (both 61) were treated differently at the swimming pool
○ Women's retirement age was 60 so the woman got in for free
○ Men's retirement age was 65 so the man had to pay
Benign (good) motive cases
- Pressure from the workforce - what if the person employing has no preference but is
pressured not to hire certain people? - R v Commission for Racial Equality ex parte
Equality Law Page 1
, pressured not to hire certain people? - R v Commission for Racial Equality ex parte
Westminster County Council [1985] ICR 827 (CA) - Council dismissed a newly hired black
worker because of pressure from the white workforce
- Affirmative action (not sanctioned by legislation) - hiring those that are minority groups only
etc - still discrimination - Jepson and Dyas Elliot v The Labour Party [1996] IRLR 116 - An
attempt to balance the representation in the Houses of Parliament was sex discrimination
- Chivalry - women not being required to do 'dirty' jobs - still discriminating against men -
Ministry of Defence v Jeremiah [1980] QB 87 - women not required to work in the dirty parts
of the factory
- Protection from harassment - claiming that not hiring a woman to protect her from
harassment from men is discrimination - Grieg v Community Industry [1979] ICR 356 - Woman
denied work with all male decorating team
- Customer preference - Diaz v Pan Am - preference for female cabin crew
- Racial preference based on religious doctrine - JFS case - Jewish school rejecting those who
were not Jewish to their standards
- To ensure racial impartiality - e.g. North and South Sudan during war - North didn’t trust South
etc - Amnesty Int v Ahmed [2009] - preference for case workers to not be a national of the
country under investigation
- Protection from violence - Amnesty Int v Ahmed
'But for' to 'but why'
- Nagarajan v LRT [2000] 1 AC 501 (HL) 511 (Lord Nicholls)
○ 'Save in obvious cases, answering the crucial question will call for some consideration of
the mental processes of the alleged discriminator.'
The current approach
- 'Obvious' or overt discrimination - motive irrelevant, no further inquiry required
- 'Less obvious' - see Lord Nicholls 'mental processes' test in Nagarajan
The 'cat's paw' theory
- The idea that a monkey manipulated a cat to do the work for him
- If a person has bias against someone because they are disabled and reports him to the
manager for being inefficient and fakes evidence, and the manager fires the disabled person
because of this, who is responsible?
- Orr v Milton Keynes [2011] EWCA 62 - rejected the theory
- Reynolds v CLFIS [2015] EWCA Civ 439 - rejected theory
- Royal Mail v Jhuti [2019] UKSC 55 - accepted the theory for unfair dismissal
○ 'if a person in the hierarchy of responsibility above the employee determines that he or
she should be dismissed for a reason but hides it behind an invented reason which the
decision maker adopts [in good faith], the reason for the dismissal is the hidden reason
rather than the invented reason.'
When the victim does not have a protected characteristic:
'Third party' discrimination
- Showboat Entertainment Centre v Owens [1984] 1 WLR 384 (EAT)
○ Employer asked Owens to not allow black youngsters into the arcade
○ Owens refused to oblige and was dismissed
○ He brought a case for racial discrimination and was successful - it was still a protected
characteristic even if it wasn’t his own
- Redfearn v Serco (t/a West Yorkshire Transport Service) [2006] EWCA 659
○ White bus driver, exemplary, often drove Asian passengers and was a loved driver
○ Decided to run for the British National Party and was fired for this
○ He brought a case for racial discrimination - Court reversed the Showboat decision as it
had left the law too open
'Associative' discrimination
- Race Relations Board v Applin [1975] AC 259
Equality Law Page 2
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