EMP5
DIRECT DISCRIMINATION
PROCEDURE PLAN
Step 1: The EqAct protects both “workers” and “employees”:
o Employees (s39)
s83(2) of EqA: defines ‘Employment’ as “employment under a contract of
employment, a contract of apprenticeship or a contract personally to do work”.
Is the Claimant o Job applicants (s39).
Eligible to bring o Contract workers (s41)
a Claim? o Office holders (s50) - A person who's been appointed to a position by a company or organisation but
doesn't have a contract or receive regular payment may be an office holder. This includes statutory
appointments, such as registered company directors or secretaries, board members of statutory bodies, or
crown appointments.
o Trade union members (s57)
o Employees after their employment has ended (s108).
No length of service requirement
Time Limit 3 months (LESS A DAY) from the date of the unlawful act (s123(1)).
The Tribunal has discretion to extend the time period if it thinks it “just and equitable”
(s123(1)(b)).
If YES, then continue. If NO, then fails claim
Step 2: Section 4 of the Equality Act 2010 sets out certain ‘protected’ characteristics’
Age (s5)
Disability (s6)
Gender reassignment (s7).
o I.e. someone who is proposing to undergo, has undergone, or is undergoing gender
reassignment.
o Includes transsexuals (s7(2)) [someone who identifies as belonging to the opposite sex]
“a reference to a transsexual person is a reference to a person who has the protected
Identify the characteristic of gender reassignment”.
relevant Marriage and civil partnership (s8).
Protected Race (s9)
Characteristic o Includes “colour”, “nationality, “ethnic or national origins” (s9(1)(a)-(b)).
Religion or belief (s10).
o Includes reference to a “lack of belief” (s10(2)).
o Includes “philosophical beliefs” (s10(2)) e.g. belief action is urgently needed to address
climate change (Nicholson v Grainger plc [2010] IRLR 4).
o Can include political beliefs (Olivier v DWP (ET/1701407/13)
o If an employee genuinely believes their faith requires a particular course of action, that
is sufficient to make it part of their religion (Hussain v Bhullar Bros (ET/1806638/04).
Sex (s11).
Sexual orientation (s12).
Pregnancy and maternity (s18).
Step 3: s39 defines the following unlawful acts:
s39(1): Where an employer (A) discriminates against a person [includes job applicants] (B):
Has there been (a) in the arrangements for deciding to whom to offer employment.
a potentially (b) as to the terms on which A offers B employment;
Unlawful Act? (c) by not offering B employment.
DIRECT DISCRIMINATION
PROCEDURE PLAN
Step 1: The EqAct protects both “workers” and “employees”:
o Employees (s39)
s83(2) of EqA: defines ‘Employment’ as “employment under a contract of
employment, a contract of apprenticeship or a contract personally to do work”.
Is the Claimant o Job applicants (s39).
Eligible to bring o Contract workers (s41)
a Claim? o Office holders (s50) - A person who's been appointed to a position by a company or organisation but
doesn't have a contract or receive regular payment may be an office holder. This includes statutory
appointments, such as registered company directors or secretaries, board members of statutory bodies, or
crown appointments.
o Trade union members (s57)
o Employees after their employment has ended (s108).
No length of service requirement
Time Limit 3 months (LESS A DAY) from the date of the unlawful act (s123(1)).
The Tribunal has discretion to extend the time period if it thinks it “just and equitable”
(s123(1)(b)).
If YES, then continue. If NO, then fails claim
Step 2: Section 4 of the Equality Act 2010 sets out certain ‘protected’ characteristics’
Age (s5)
Disability (s6)
Gender reassignment (s7).
o I.e. someone who is proposing to undergo, has undergone, or is undergoing gender
reassignment.
o Includes transsexuals (s7(2)) [someone who identifies as belonging to the opposite sex]
“a reference to a transsexual person is a reference to a person who has the protected
Identify the characteristic of gender reassignment”.
relevant Marriage and civil partnership (s8).
Protected Race (s9)
Characteristic o Includes “colour”, “nationality, “ethnic or national origins” (s9(1)(a)-(b)).
Religion or belief (s10).
o Includes reference to a “lack of belief” (s10(2)).
o Includes “philosophical beliefs” (s10(2)) e.g. belief action is urgently needed to address
climate change (Nicholson v Grainger plc [2010] IRLR 4).
o Can include political beliefs (Olivier v DWP (ET/1701407/13)
o If an employee genuinely believes their faith requires a particular course of action, that
is sufficient to make it part of their religion (Hussain v Bhullar Bros (ET/1806638/04).
Sex (s11).
Sexual orientation (s12).
Pregnancy and maternity (s18).
Step 3: s39 defines the following unlawful acts:
s39(1): Where an employer (A) discriminates against a person [includes job applicants] (B):
Has there been (a) in the arrangements for deciding to whom to offer employment.
a potentially (b) as to the terms on which A offers B employment;
Unlawful Act? (c) by not offering B employment.
