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 excluding them for fighting is direct discrimination on grounds of sexual orientation unless they can show that a heterosexual or bisexual student would not be excluded for fighting. You do not need to find an actual person to compare their 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’.
Discrimination arising from disability
Discrimination arising from disability occurs when you treat a disabled person unfavourably because of something connected with their disability and cannot justify such treatment.
Discrimination arising from disability is different from direct discrimination. Direct discrimination occurs because of the protected characteristic of disability. In cases of discrimination arising from disability, the reason for the treatment does not matter; the question is whether the disabled person has been treated unfavourably because of something connected with their disability.
Discrimination arising from disability is also different from indirect discrimination. There is no need to show that other people have been affected alongside the individual disabled person or for the disabled person to compare themselves with anyone else.
Discrimination arising from disability will occur if the following three conditions are met:
- a disabled person is treated unfavourably, that is, they are put at a disadvantage, even if this was not the intention;
- this treatment is because of something connected with the disabled person's disability (which could be the result, effect or outcome of that disability) such as an inability to walk unaided or disability-related behaviour; and
- the treatment cannot be justified by showing that it is ‘a proportionate means of achieving a legitimate aim’.