Direct Discrimination

  • Direct Discrimination (s13)

“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.”

  • Therefore the requirement for a real or hypothetical comparator, who does not share the protected characteristic, is retained
  • No comparator necessary in maternity and pregnancy discrimination

Association and Perception:

  • S13 does not refer to the PC of any particular person (except marital or civil partnership status)
  • Previously with age, sex, disability, gender reassignment ­ the complainant needed to have one of those characteristics
  • The DDA was interpreted by EAT in Coleman v Attridge Law 2008 as moving away from this
  • The EA has accepted that modification and extended it to all strands of discrimination
  • Thus if someone treats (A) unfavourably because (A) looks after elderly patients, that can be discrimination because of Age (even though (A)’s age is not the reason for the treatment) ­ “Associative discrimination”
  • If someone treats (A) unfavourably because they think (A) is homosexual, that can be discrimination because of sexual orientation (even though (A) is not in fact homosexual) ­ “Perception discrimination”

Combined Discrimination (from April 2011, if brought into force)

In Bahl v Law Society 2004 CA noted that the absence of protection for combining protected characteristics was a problem

S14:

  • Dual (i.e. only two)
  • Only in relation to direct discrimination
  • Do not have to succeed on both PC’s
  • Potential defence ­ if can show not disc. because of either/or
  • Would bring a claim under both individual PC’s and then also s14 (Direct Discrimination)
  • Doesn’t apply to marriage and civil partnership, and pregnancy and maternity