Like for like comparison
In order to establish whether an employer has directly discriminated against a person, it is necessary to pose two questions, which in practice are often closely inter-linked. Using a case of alleged sex discrimination against a woman as an example, the first question is, has the employer treated this woman less favourably than it treats, or would treat, a man in the same, or not materially different, circumstances? The second question is, was the basis for that less favourable treatment the woman’s sex or some other, non-discriminatory ground?
So, to illustrate, assume that an employer has shortlisted a man and a woman for a post. The candidates have the same or broadly equivalent skills, experience and qualifications for the job. Both have young children. The employer decides to recruit the man because it believes that women with young children are unreliable. The employer has therefore treated the woman less favourably than it has treated a man who has the same, or not materially different, relevant attributes, by recruiting him and rejecting her. The ground for that treatment was the employer’s sex-based assumption that women with young children are unreliable but men with young children are not. The employer has therefore directly discriminated against the woman on the grounds of her sex.
Motive irrelevant
A common factor in all the definitions of direct discrimination is that they take no account of the employer’s motive, purpose or intention in acting in the way that it did. For example, an employer that refuses to recruit women or black people because of a conscious or unconscious desire to ‘protect’ them from the sexist or racist language that they are likely to encounter in the workplace is acting just as unlawfully as an employer who rejects black and female candidates because of sexual or racial prejudice.
Proving discrimination
Another important practical point common to all types of direct discrimination relates to the way in which discrimination is established in an employment tribunal. It is up to the person who alleges discrimination to prove that it has occurred. Tribunals recognise, however, that direct evidence that an employer has based an employment decision on a person’s sex, sexual orientation, age, race, religion or disability is rarely available. Few employers are likely to admit in evidence, or to record in their personnel documentation, that their actions were influenced in that way. Indeed, employers may be biased against certain job applicants and employees because of their sex, sexual orientation, age, race, religion or disability without even being aware that they are.
The legislation therefore gives some help to those who are alleging discrimination, by effectively relieving them of the need to prove all the aspects of their claim. To illustrate how this works, assume a woman has brought a claim of sex discrimination. It is up to her to put to the tribunal some evidence that could indicate that she has been less favourably treated than a man was, or would have been, treated in the same or not materially different circumstances. However, it is then up to the employer to prove that the woman’s less favourable treatment was not on the grounds of her sex. If the employer cannot provide an adequate, non-discriminatory explanation for the way it acted, the tribunal must uphold the woman’s claim.
The possibility that a tribunal may conclude that discrimination has occurred if an employer cannot provide a cogent explanation for its actions underlines the need for companies to ensure that they base their employment decisions on objective and non-discriminatory grounds and, wherever possible, record the reasons for their decisions.
Questionnaires
In order to help them discover whether they have been the subject of unlawful discrimination, individuals have the right to question employers about whether they have been less favourably treated, and, if they have, what the reason for that treatment was. If an employer deliberately and without reasonable excuse fails to reply to an individual’s questionnaire within eight weeks, or replies in a way that is evasive or unclear, an employment tribunal hearing any discrimination claim that the individual may bring is entitled to draw whatever inferences it considers just to draw, including an inference that the employer has discriminated unlawfully.