What is Direct Discrimination?
Direct discrimination refers to situations where someone is treated less favourably because of their sexual orientation, their gender identity, their perceived sexual orientation or the sexual orientation of someone they are close to. This can include a friend, relative or colleague.
Under the Equality Act 2010 an employer cannot refuse a job, promotion or any training opportunity to an employee on the basis of their sexual orientation or gender identity.
Employee benefits and salary
Direct discrimination can be measured by comparing the situations of two employees. These employees should be in comparable situations except one is gay and the other is heterosexual. Under the Equality Act 2010 an employer cannot offer different employee benefits or treat staff differently on the basis of their sexual orientation.When comparing the two employees it should be possible to show that both receive comparable benefits, opportunities and that workplace policies are being applied equally. For example; if heterosexual staff are able to talk openly about their personal lives and can invite their partners to work events or work related activities then there should be no reason why a lesbian, gay or bisexual employee cannot be open about their personal life. In addition to this, any privileges offered on the basis that an employee is married must extend to same-sex married couples and those in civil partnerships. All employers, regardless of how many people they employ, should work to ensure their policies and procedures are inclusive and the language used withing them reflect this.
The only time it would be possible for an employer to refuse a job or promotion on the basis of an employees sexual orientation is when there is a reason why, considering the nature or context of the work, being of a particular sexual orientation is an occupational requirement. There will be very few cases where an occupational requirement exception could be used in cases involving sexual orientation. An employer would usually have sought legal advice before including a genuine occupational requirement as part of a role description. They would need to include these details in the initial application information.
Positive action refers to rules which allow an employer to offer a job to an individual on the basis of a protected characteristic, such as sexual orientation. These rules in recruitment are very strict. It is only justified when an employer has two candidates of equal merit; and can show that a particular group is underrepresented in the workplace or faces a particular disadvantage in it. To justify such a decision, the employer would need to carefully monitor diversity in the workplace and engage in positive action on a case by case basis. A blanket policy of recruiting from particular groups would be unlawful.
Direct discrimination and religious organisations
A religious organisation would be able to specify that an applicant must be heterosexual as long as they can clearly show that by allowing someone who is lesbian, gay or bisexual to take that particular role the employer would go against the doctrines of that religion, or with the strongly held views of a significant number of the religions followers. There are very few roles which would satisfy these criteria and it would only be applicable to job roles which require an individual to teach or advocate these convictions, such as a priest.
Some examples of direct discrimination:
Case Example 1
Seb applied for a training post as a nursing assistant but was unsuccessful. When he asked why his manager said it was due to concerns that, as he was openly-bisexual, elderly male residents would be uncomfortable with him carrying out the personal care duties the role required.
Under the Equality Act 2010 it is unlawful for employers to refuse a job, promotion or any training opportunity to an employee on the basis of their sexual orientation.
Case Example 2
Kira works as a classroom assistant at a primary school. Her brother is gay; they are very close and Kira often talks about him at work. Kira recently found out that she had been turned down for a promotion because of concerns about the impact that Kira talking about her brother being gay would have on the children.
Direct discrimination also refers to unfair treatment due to being associated with someone who is lesbian, gay or bisexual. This can include a friend, relative or colleague. An employer cannot refuse a job, promotion or any training opportunity to an employee on the basis of the sexual orientation of someone they know.
Case example 3
Jane works for a hotel. All staff talk openly about their partners and children to each other and to their customers. Jane has been told by her manager that it would “not be wise to talk about her girlfriend at work” and that they would “rather she did not invite her gay friends to see her at work.”
An employer cannot offer different employee benefits or treat staff differently on the basis of their sexual orientation. In the situation above, Jane would need to ask her manager why they made the request. If the reason given is equally applied to both employees it would be difficult to show discrimination. However, if the reason clearly affects the gay employee and not the heterosexual employee, this is direct discrimination.
All employers, regardless of how many people they employ, should work to ensure their policies and procedures are inclusive and the language used within them reflects this. For instance, if certain privileges are offered on the basis that an employee is married, then this must extend to those in civil partnerships.
Case Example 4
Jamie works as a receptionist in large charity. He recently spoke to his manager about transitioning at work. His employer has decided that as he works in a very public facing role it would be "better for the customers and less embarrassing for Jamie" if they move him into a back-room administrative role if he wants to come to work "dressed as a man".
Under the Equality Act 2010 it is unlawful for employers to refuse a job, promotion or any training opportunity to an employee on the basis of their gender identity. This includes moving staff into different roles within the organisation without consultation or a legitimate reason (for example if they were providing a single-sex service). Jamie is also protected from "humiliating and degrading treatment" on the basis of his gender identity.
What is indirect discrimination?
Indirect discrimination refers to situations where a workplace policy, provision, criteria or practice puts people of a particular sexual orientation or gender identity at a disadvantage when compared to others of a different sexual orientation or gender identity.
Example of indirect discrimination
Rachel works in a call centre which offers 24 hour customer service. Her employers promote a work policy which expects staff without young family and children to work more unsociable shifts, for example night shifts and bank holidays. Rachel has noticed that this has led to more of her lesbian, gay or bisexual colleagues working these shifts as they don’t have children.
Under the Equality Act 2010 it is unlawful for an employer to follow a provision, criterion or practice which places lesbian, gay or bisexual people at a particular disadvantage. As it is less likely for lesbian, gay or bisexual people to have children or young families it means they are more likely to be given the unsociable shifts. Whilst the policy appears to treat all employees equally in practice it places lesbian, gay and bisexual staff at a particular disadvantage. As this conduct amounts to indirect discrimination rather than direct discrimination, in certain circumstances, such a policy may be justified. The employer would need to show that it is a proportionate means of achieving a legitimate aim, such as encouraging women returning from maternity leave to come back to work. In these types of cases, the rights of different groups need to be considered alongside each other to deliver the fairest outcome.