There are four core types of discrimination that are prohibited under both the Race and Framework Directives:
Direct discrimination occurs where a person is:
- treated less favourably than another person is, has been or would be;
- the other person is in a comparable situation; and
- the treatment is on grounds of racial or ethnic origin (in relation to the Race Directive), religion or belief, sexual orientation, or disability (in relation to the Framework Directive).
In relation to the grounds of age, a different test applies as direct age discrimination can be justified. This is examined in more detail in module 5 on age discrimination.
The crucial element of direct discrimination is determining whether the persons are in a comparable situation. There may not always be an actual comparator, in which case a hypothetical comparator may be sufficient to establish direct discrimination.
Example:
The owner of a hotel tells a Black couple that arrive to book a room that he does not want migrants staying there and refuses to allow them to stay. This is unlawful direct race discrimination in the provision of a service.
Indirect discrimination occurs where:
- an apparently neutral provision, criterion or practice is applied to persons of a protected group (identified by racial or ethnic origin, religion or belief, sexual orientation, disability or age);
- the provision, criterion or practice would put that group at a particular disadvantage compared with other persons; and
- the provision, criterion or practice is not objectively justified.
In order to establish that a provision, criterion or practice is objectively justified, it must be shown that there is both a legitimate aim involved, and that the means of achieving the aim are “appropriate and necessary”, in other words that the means are proportionate.
Example:
A job involves travelling to lots of different places to see clients. An employer says that, to get the job, the successful applicant has to be able to drive. This may stop some disabled people applying if they cannot drive. But there may be other perfectly good ways of getting from one appointment to another, which disabled people who cannot themselves drive could use. So the employer needs to show that a requirement to be able to drive is objectively justified, or they may be discriminating unlawfully against people who cannot drive because of their disability.
In relation to disability discrimination, to addition to direct and indirect disability discrimination being prohibited, there is also a requirement on employers and any other persons to which the Framework Directive applies to make reasonable adjustments. This is examined in module 6 on disability discrimination.