Direct discrimination in the employment context deals with the situation whereby a prospective employee or a current employee is treated less favourably due to their race, sex, marital status, religion, sexual orientation or gender reassignment.
Direct discrimination tends to be the most obvious forms of discrimination such as a female job candidate who carries the best qualifications and the most experience not even getting an interview for a job whereas a male candidate with less qualifications does get an interview.
Another example of this in relation to sexual discrimination is if a female employee is ignored for a promotion with the job going to a male worker with fewer qualifications.
The following are examples of direct discrimination on the grounds of religion or belief:
Refusing entry to commercial premises
Refusing to serve someone in a shop or a restaurant
Denying someone accommodation
When dealing with direct discrimination the law simply looks at the end effect of the actions. Therefore there is no argument from an employer or another individual that it was not their intention to discriminate.
Indirect discrimination occurs in the situation whereby the business practices by an individual employer or a specific company which apply to everyone in their employment result in certain people (whether they be from a specific race or gender) being put at a disadvantage.
The following are examples of indirect discrimination:
Failing to provide religiously appropriate food when catering – indirect discrimination on grounds of religion or belief
Failure to provide gender appropriate services – indirect discrimination on the grounds of sex
Offering services only at a limited time which conflicts with various religious observances – indirect discrimination on the grounds of religion or belief
If as a result of an individual business’ practices there is a difference in the quality of treatment that some people receive it may be able to be argued that the practice is objectively justified – i.e. that it is a proportionate means of achieving a legitimate aim.
The following is an example of a case where indirect discrimination on the grounds of age by an employer was seen to be objectively justified.
An employer excluded those workers over 60 from their enhanced redundancy scheme also tapering benefits for those aged between 57 and 60. An employee aged 61 argued that as he was not provided with access to the enhanced redundancy scheme he was being indirectly discriminated against on the grounds of his age.
The employer argued that the decision was taken to exclude those over 60 as they were entitled to benefits under the company’s pension scheme. Even when the compulsory pension age was changed by law to 65 the employees were still able to take their company pension at 60 without penalty to their accrued benefits.
The court held that this was a proportionate means of achieving a legitimate aim as the principle of tapering redundancy payments was legitimate in order to prevent older employees receiving a windfall when coming to retirement age. It was also seen to be a proportionate means of doing this because the system had been subject to negotiations and was intended to provide a balance between employee and employer.
The case is currently being heard on appeal to an Employment Tribunal.
Ask your legal question using the box below and have a response from solicitor or barrister within minutes.