Direct Discrimination: What is it and why does it matter to your business?

Companies want to make sure their employee experiences are positive and inclusive. To that end, leaders may turn to diversity and equality policies and do their best to foster a culture of cooperation and fair treatment. But despite their best intentions, discriminatory treatment can still happen. When it does, it causes a significant problem for businesses and their employees.

One example is direct discrimination, a type of claim that can be brought against an organisation. It’s important that companies are aware of the rules, are familiar with examples of what direct discrimination looks like and know what steps to put in place to avoid future issues.

Why is direct discrimination important to your business?

This kind of discrimination is important as it impacts a person’s civil rights. In the UK employers must treat employees fairly, whether or not they have a protected characteristic, under the 2010 Equality Act. 

A protected characteristic is a feature of that person’s identity, perceived identity or lifestyle that could be used as a reason for inequality. The protected characteristics under the 2010 Equality Act are:

• age
• disability
• gender reassignment
• marriage or civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

If employers treat employees unfavourably based on a protected characteristic it may be against the law and give affected employees grounds to sue the company.

It’s worth noting that not all unfair treatment is illegal. An employer can be selective on the basis of protected characteristics because of the nature of the organisation or role. This is known as an occupational requirement. For example, an imam can be hired on the basis of being a Muslim because it’s essential for the role, even though this discriminates against people of other faiths. 

Employers may also be allowed to discriminate when not doing so would unreasonably harm their business. For example a newly physically disabled employee at a ballet company may not be allowed to continue to perform her job as a professional dancer.

What is direct discrimination?

Direct discrimination is unequal treatment given to an employee. It may be due to the employer having prejudiced beliefs that cause them to apply different standards to different people based on protected characteristics. However, it’s still direct discrimination if the person didn’t know they were discriminating or didn’t intend to do it.

Examples of direct discrimination in business

Examples of directly discriminatory practices in business include:

• A person assigned male at birth is working in a client-facing sales role. They transition and become a woman, and their employer changes their job role against their wishes so that they no longer meet clients. This is unlawful.
• An employer gives senior positions in a company to male employees, because the long hours of the job are perceived to conflict with female employee childcare arrangements or pregnancy health checks. This is sex discrimination and also pregnancy and maternity discrimination.
• Criminal background checks are only performed for new hires that come from a particular race, nationality or religion. This is a clear example of less favourable treatment.

Direct and indirect discrimination 

An employer may instate a rule or practice that is neutral and serves all employees, but would disadvantage people from a protected class more than others. This is indirect discrimination.

In cases of indirect discrimination, the employer unintentionally impacts people with protected characteristics by not considering that the same actions could disadvantage some people more than others.

For example, implementing and emphasising a drinking culture to socialise and bond teams may negatively impact employees that have religions that discourage drinking. By not taking part in social drinking, they are harmed in their job prospects and company inclusion.

Both direct and indirect discrimination are covered by the Equality Act 2010.

What impact can discrimination have on your business?

There are many ways discrimination can affect a business:

• Cost: The expense of being sued can impact the finances of a business, especially if the legal process is long
• Reputation: Being involved in proceedings that involve the Equality Act 2010 can harm your company’s reputation
• Employee perception: Within a company, the employees can view this as the way that all are treated, which could lead to high attrition rates and poor morale levels

The knock-on effects of these impacts will reflect negatively on sales, company culture and employee productivity.

What can employees do?

Any employee or applicant to a company can claim they are a victim of discrimination on the basis of age, disability, marriage or civil partnership, pregnancy and maternity, race, sex, gender reassignment, religion or belief, or sexual orientation.

• It’s not necessary for the individual to have the characteristic, only for the employer to think that they do. This is called discrimination by perception.
• The discrimination may relate to someone the individual knows or is close to rather than the employee themselves. This is called discrimination by association.

In what ways can direct discrimination be shown?

• Refusal to hire: A CV is dismissed from the consideration pool because the name on the CV suggests a non-white background. If the employer continues to seek applicants, despite the current applicant being qualified, this could be direct discrimination.
• Poor working conditions: An employer places employees in hostile working conditions based on prejudicial views about their protected characteristics. The employees may be subjected to ridicule or attacks, or they may be passed over for promotion for no other reason than their protected characteristics.
• Reason to terminate employment: An employer unfairly fires an employee in circumstances that indicate their protected characteristics were the reason. For example, if a young person is fired for certain behavior on the job, but older employees do the same and aren’t reprimanded, it could be that the employer prefers workers that are older.

What happens if an employer is accused of discrimination?

In the UK, an employee typically begins the process by making a formal complaint, which is also called ‘raising a grievance’. Employers will have a formal grievance procedure in place which can lead to an employment tribunal. 

The employee may also choose to report the matter to the police, where it may progress to a criminal conviction.

In order for them to take action under the Equality Act 2010, the employee must be able to show that they have been treated unfavourably (differently and worse) in comparison to an employee without the protected characteristic, known legally as a comparator. 

How to avoid direct discrimination at your organisation

Prevention is always the best approach to tackling the possibility of direct discrimination.

HR professionals and leaders can work together to prevent this issue by:

• Implementing or reviewing policies: These policies can cover all aspects of company life, from hiring, working conditions, career progression, performance management and termination. The policies should be reviewed regularly for their emphasis on fair treatment. It is recommended that your legal team be involved so that the policy is within the letter of the law.
• Manager and leadership training: Managers and team leaders can be the perpetrators of direct discrimination and they must be made aware of the law and requirements associated with it. If there are concerns, they should be discussed and training should be provided at several stages throughout their career so that this issue is front of mind.
• Focus on Diversity, Equality and Inclusion (DEI) in the company: If your company does not have a culture of diverse and inclusive thinking, then it’s time to change. Recognition for the diverse and different backgrounds of your employees helps create a safer and more aware organisation, which is accepting and supportive of people from protected groups. 

The Society for Human Resource Management (SHRM) describes the nine action steps to creating a DEI initiative, which can be a helpful starting resource for employers. 

• Create opportunities for communication and feedback: Employers can provide safe channels where employees can give feedback on behaviour or whistleblow to senior leaders about their experiences. This can prevent issues snowballing, allowing leaders and HR to react quickly and resolve possible violations in the making.
• Document your actions: Review the practices regularly to see if employer actions towards employees were lawful and proportionate. 

How can Qualtrics help prevent direct discrimination?

As you build a culture of diversity and inclusion, you will be responsible for enhancing the employee lifecycle from start to finish. 

For every change you make, you want to ensure that employees get the message, understand the new information and act accordingly. This is hard to do individually with large numbers of employees spread across different locations and with different language requirements. 

Qualtrics solutions can make this process easier and faster. The one-stop solution keeps track of what is sent, who receives it and what the responses are. Language support is included, with easy follow-on and alert set-up, should you need to respond quickly to issues.

It can connect easily with existing systems to synchronise data and make reporting easy. This is especially useful if you need to prove documentation during formal proceedings.

And it’s not only useful in reacting to changes in the company. It can help identify issues in advance, by being used as a tool to communicate with your employees directly.

Employees can be asked for their feedback in annual employee surveys, online honesty boxes, satisfaction surveys and employer branding surveys. These can show how employees perceive the real-life conditions they face and give you early understanding so you can take action.