The Equality Act (2010) sets out three types of unlawful discrimination: direct discrimination, indirect discrimination, and discrimination arising from a disability.
Direct discrimination occurs when you treat a person less favourably than you treat (or would treat) another person because of a protected characteristic such as age, disability, gender reassignment, marriage and civil partnership (in employment), pregnancy and maternity, race, religion or belief (including lack of belief), sex or gender, sexual orientation. This could be refusing to give someone a job because of their race or not admitting them on to a course because of their religious beliefs.
It is not possible to justify direct discrimination, so it is always unlawful. In order for someone to show that they have been directly discriminated against, they must compare what has happened to them to the treatment a person without their protected characteristic is receiving or would receive. So a gay student cannot claim that taking action against them for fighting is direct discrimination on grounds of sexual orientation unless they can show that a heterosexual or bisexual student would not receive the same treatment for fighting. You do not need to find an actual person to compare treatment with but can rely on a hypothetical person if you can show there is evidence that such a person would be treated differently.
There are a couple of instances where it is acceptable to treat someone differently. It is not discrimination against males if a woman is pregnant and a reasonable adjustment is put in place in connection with her pregnancy or childbirth which would mean she was being treated differently. The same applies for a disabled student or member of staff; reasonable adjustments to support a student in an exam, for example, would not constitute direct discrimination against a non-disabled student.
Direct discrimination can also take place based on association with someone with a protected characteristic, or it can be based on perception. In this case you do not need to have a particular protected characteristic to experience direct discrimination; it can occur, for example, if someone is treated less favourably because they have a partner who has a disability, or because a person is mistakenly thought to be gay.
Indirect discrimination occurs when you apply a provision, criteria or practice in the same way for everyone but this has the effect of putting people sharing a protected characteristic at a particular disadvantage. It doesn’t matter that you did not intend to disadvantage that group. What does matter is whether your action does or would disadvantage that group in some way.
Indirect discrimination will occur if the following three conditions are met:
- the provision, criterion or practice is applied or would be applied equally to all people, including a particular person or group with a protected characteristic;
- the provision, criterion or practice puts or would put people sharing a protected characteristic at a particular disadvantage compared to relevant people who do not share that characteristic; and
- the provision, criterion or practice puts or would put the particular person or group at that disadvantage, and it cannot be shown that the provision, criteria or practice is justified as a ‘proportionate means of achieving a legitimate aim’.
Find out more
Equality and Human Rights Commision (EHRC) provide further information on the different types of discrimination and what is meant by ‘a proportionate means of achieving a legitimate aim’.