What is direct discrimination?

Direct discrimination occurs when employees or job applicants are treated less favourably than other people because of who they are. Direct discrimination is also deemed to occur if a manager instructs one person to treat colleagues unfavourably because of who they are.

Direct discrimination is morally wrong and has no place in the modern workplace. Strong employment equality laws are in place to guard against discrimination occurring in the workplace. It is your legal duty as an employer to ensure that discrimination does not occur on your watch.

The law prohibiting direct discrimination at work

The Employment Equality Acts 1998 – 2015 (EEA), set out the law dealing with discrimination in the workplace. The EEA outlaw certain forms of discrimination based on nine specific grounds. Under the EEA, discrimination based on any of the following 9 grounds is prohibited:

• gender: taken to mean man, woman or transsexual
• civil status: whether a person is single, married, separated, divorced, widowed, a civil partner or former civil partner
• family status: whether a person is the parent of a person under 18 years or the resident primary carer or parent of a person with a disability
• sexual orientation: whether a person is gay, lesbian, bisexual or heterosexual
• religion: includes religious belief, background, outlook or none
• age: this does not apply to a person aged under 16
• disability: includes people with physical, intellectual, learning, cognitive or emotional disabilities and a range of medical conditions
• race: includes race, skin colour, nationality or ethnic origin
• membership of the Traveller community.

High-risk areas for direct discrimination at work

Pregnancy and maternity: if an employer treats a new mother unfavourably on the basis of her absence from the workplace on maternity leave, this will constitute direct discrimination on the ground of gender. New mothers enjoy protected employment status while on maternity leave. If an employee who is absent on maternity leave does not receive the same opportunities as her colleagues, the employer will be exposed to the risk of facing a costly discrimination claim.  

Gender reassignment:  there is a risk for employers in a scenario where a transgender employee informs the employer that s/he intends to undergo surgery to transition from one gender to the other. If following the employee’s announcement, the employer subsequently treats that employee less favourably than his/her colleagues, the employer will be vulnerable to the risk of facing a direct discrimination claim.

Preventing direct discrimination at work

Focusing on your organisational culture will go a long way in eliminating the risk of discriminatory behaviour in the workplace. Equality needs to be prioritised, promoted and communicated to all employees. The content of company policies and procedures should be crystal clear that equality is central to the organisation’s values and that discrimination of any kind will not be tolerated.

Employees should also be aware that the employer has a duty to protect employees against suffering discrimination.  Company policies should set out how the employer will deal with allegations of discrimination, the appropriate investigation procedures and disciplinary action that will be taken where necessary.

If an employee lodges a grievance in relation to discriminatory treatment, employers should explore whether it is appropriate to attempt to resolve the matter on an informal basis. An informal approach will not always be appropriate. Aggrieved employees often feel so profoundly affected by the discriminatory behaviour that an informal resolution method will not correspond with the gravity of their complaint.   

Employers must ensure that complaints are handled in a timely manner, that investigation processes are handled transparently and that the aggrieved employee receives appropriate support. Handling discrimination issues transparently and with sensitivity demonstrates to employees that discrimination will not be tolerated. Running a transparent and efficient investigation also helps ensure that the negative impact of a discrimination claim on employee morale is minimised.

Is mediation appropriate? 

The informal approach to resolving direct discrimination disputes can include a mediation process. The presence of a mediator may allow two employees to discuss the incident in a neutral environment.

A mediation meeting typically affords the aggrieved employee an opportunity to explain the impact of the discriminatory behaviour and sets out a roadmap for repairing the relationship to include commitments from both sides in relation to future conduct.

Mediation will not always be appropriate. Depending on the gravity of the allegations, the perpetrator may need to be held directly to account for their behaviour. Conducting an investigation in line with the company grievance procedures and taking any appropriate disciplinary action may be the only course of action for serious cases of direct discrimination.