Direct Discrimination

Question 1

Elements of direct discrimination?

Answer 1

“1. The need for a comparator

2. Do motives matter?
3. Perception and association”

Question 2

Who is the hypothethical comparator?

Answer 2

“not identical, but not wholly dissimilar.

Question 3

Positive Actions for sex?

Answer 3

Furlong Case -> was discriminated based on positive action bc police couldn’t show justification for blanket screen.

Question 4

Do motives matter?

Answer 4

“Amnesty International v Ahmed [2009] ICR 1450, EAT

• Cannot be hired bc location and political sensitives bias. Amnesty argued protection motive.
• relevant: Reason for less favourable treatment (ethnic origin)

R v Governing Body of JFS [2009] UKSC 15, [2010] 2 AC 728 SC

• If oversubscribed, preferred entrance for jewish. Mother convert not jewish enough.
• Matrimonial descent was a test of ethnic origin -> policy direct discrimination
• Relevant: what were the facts that the discriminator considered to be determinative when making the relevant decision?

Owen Briggs v James
- enough if important factor, even if there were other considering motives.”

Question 5

Is a good motive for the discrimination an excuse?

Answer 5

“Jones v Eastleigh (1990)
- the test to be applied was objective, and if, applying it, the answer would have been that the plaintiff would have received the same treatment but for his sex there was direct discrimination. A benign motive was irrelevant.

Moyhing v Barts (2006)
- good motive is not excuse”

Question 6

Perception and association

Answer 6

“CJEU: ‘on grounds of’ not limited to the person’s own characteristic
EG: Coleman - Sufficient there is disability discrimination through association.
UK: Thomas Saunders”