The Equality Act 2010 distinguishes between direct discrimination and indirect discrimination.
Direct Discrimination v Indirect Discrimination
You are a victim of direct discrimination if you are treated less favourably at work than others because of a protected characteristic. For example, you may be a woman working as a newspaper reporter when you tell your employer you want to spend the rest of your life living as a man.
As a result, your employer moves you - against your wishes - to a production role where you do not have contact with the public. This is less favourable treatment because of gender reassignment. It makes no difference if your employer were to pay you more to make up for the loss of job status.
Generally, 'direct' discrimination is about being treated less favourably in comparison with other people. Being treated unfairly is not, on its own, sufficient. Your employer might treat all their workers unfairly, yet not be guilty of discrimination. The test is to compare the way you have been treated, with the treatment given to someone who does not share your protected characteristic.
This person is called the 'comparator'. They need not be real; they could be hypothetical. A tribunal would assess how a hypothetical comparator would have been treated. As explained in Pregnancy or maternity, a special case is made for pregnancy and maternity discrimination during the 'protected period'. There is no need for a comparator. If you bring a claim, you must demonstrate only that you received unfavourable treatment, rather than being treated less favourably than someone else.
If you make a claim for direct discrimination, you must show that the less favourable treatment you suffered resulted in a 'detriment'. There is no strict definition of 'detriment' in the Act. ACAS describes a detriment as something which causes 'damage, harm, or loss'. Law at Work 2020 (p. 228) says a detriment may be a 'feeling of distress, upset, unfairness or injustice' which is the consequence of being discriminated against. You do not need to show you have been disadvantaged in some economic or physical way.
Your employer may not even be aware they are carrying out direct discrimination. For example, they may make stereotypical assumptions about what tasks a pregnant worker can or cannot perform, instead of carrying out a health and safety risk assessment in consultation with her. Your employer may be guilty of direct discrimination even if the reasons are 'subconscious and ingrained' (Law at Work 2020, p 225).
Pregnancy and maternity – direct discrimination
Your employer is guilty of direct discrimination when they treat you unfairly or unfavourably – for example, refusing you a promotion – because you are pregnant, on maternity leave or breastfeeding.
If the discrimination occurs during the protected period (described above in Pregnancy or Maternity), you need only to show that you were treated unfavourably because of pregnancy or maternity, or because you used or tried to use your maternity rights. You do not need a comparator – ie, you do not need to show that a man would have received favourable treatment. This differs from a claim for sex discrimination, when you would need a comparator.
ACAS gives an example of unfavourable treatment:
“Lucy phones into work sick, saying she is not feeling well enough to come into the office that day. She explains to her manager, Caroline, that she is feeling very nauseous and very tired because of her pregnancy. However, Caroline thinks Lucy is over-stating her morning sickness and instructs her to come into work. This is likely to be unfavourable treatment because of pregnancy.”
For you to be a victim of pregnancy discrimination, your employer must have known you were pregnant when you suffered unfavourable treatment.
The campaigning charity, Maternity Action, has detailed advice for pregnant workers concerned about a physical return to work in the face of the coronavirus pandemic.
Law at Work 2020 (p. 231) points out that pregnancy and maternity rights are also contained in other legislation:
- Health and safety rights, including the right to a maternity suspension.
- Rights to time off for antenatal care, maternity leave and pay.
- Equal treatment rights for pregnant, temporary, agency workers.
- Protection for employees from automatic unfair dismissal and detriment from day one of employment.
- Enhanced legal protection during redundancy selection, including the right to a suitable available vacancy.
- The right to statutory bereavement leave on the loss of a child under 18 or a stillbirth from 24 weeks of pregnancy.
Indirect discrimination occurs when an employer imposes a practice, policy or rule that, in itself, does not appear to be discriminatory – but which, in the workplace, is more difficult for one group with a protected characteristic to comply with. In the words of the Equality Act 2010, it puts you at a 'particular disadvantage', even though the measure applies to the whole workforce.
Citizen's Advice gives the example of a health club that accepts only customers who are on the Electoral Register. This rule applies to all potential customers. However, Gypsies and Travellers are less likely to be included in the register and will therefore find it more difficult to join. While the rule may seem fair, it disadvantages a particular group. This could amount to indirect discrimination on the protected characteristic of race. It doesn't matter whether the employer intended the policy to disadvantage that group, or not.
The Equalities and Human Rights Commission has produced a checklist (https://www.equalityhumanrights.com/en/advice-and-guidance/what-direct-and-indirect-discrimination) to determine whether indirect discrimination has taken place:
- There must be a policy which an organisation is applying equally to everyone (or to everyone in a group that includes you).
- The policy must disadvantage people with your protected characteristic when compared with people without it.
- You must be able to show that it has disadvantaged you personally, or that it will disadvantage you.
- The organisation cannot show that there is a good reason for applying the policy despite the level of disadvantage to people with your protected characteristic.
Employers do, however, have some defences against claims of indirect discrimination. ACAS says indirect discrimination might be justified by an employer when at least one of these points applies:
- A decision they take helps a disadvantaged or under-represented group ('positive action').
- They have a good business reason to discriminate ('objective justification').
- The protected characteristic is essential for the job (an 'occupational requirement').
- They're asking if they need to make their workplace more accessible ('reasonable adjustments') – they must remember not to ask about disability except in limited circumstances.
- They want to find out about the diversity of their workforce to help make it as inclusive as possible – they should still follow specific rules, including making sure the information is provided voluntarily and anonymously.
For an employer to argue the defence of 'objective justification', they must be able to show that their decision was, in the words of the Act, a 'proportionate means of achieving a legitimate aim'. Unhelpfully, the legislation does not define 'legitimate aim'. A tribunal will analyse whether an employer could have used any less discriminatory alternatives in order to realise its aim.
The protected characteristics that are safeguarded from indirect discrimination are the same as for direct discrimination, with the exception of pregnancy and maternity. However, a woman who suffers indirect discrimination for this reason will probably be able to bring a claim of direct discrimination.