Can direct discrimination ever be justified?

Direct discrimination is often thought of as an absolute prohibition – one that cannot be justified. Yet the reality is more nuanced. Recent government proposals restricting civil service internships to students from lower socio-economic backgrounds have reignited the debate about fairness, diversity and the boundaries of lawful discrimination.

While – as explained here – "class" is not a protected characteristic under the Equality Act 2010, such policies may still raise questions about direct discrimination if a protected characteristic is affected. This blog explores the narrow but important exceptions to the rule against direct discrimination.

Positive action provisions

The Equality Act allows limited scope for employers to take positive action in favour of underrepresented or disadvantaged groups. However, positive action must not slip into positive discrimination, which remains unlawful.

For more on positive action, please see:

• Diversity in the workplace: dos and don’ts of positive action
• Navigating positive action in recruitment
• Are race-based workplace “affinity groups” discriminatory?

Occupational requirements (OR)

Certain employers can insist that employees or applicants have, or do not have, particular protected characteristics in certain circumstances. This applies where:

• being of a particular sex, race, disability, religion or belief, sexual orientation or age – or not being a transsexual person, married or a civil partner – is a requirement for the work (not just preferrable);and
• the OR is a proportionate means of achieving a legitimate aim (objective justification); and
• the claimant does not meet the requirement (or, other than in sex cases, the employer has reasonable grounds for not being satisfied that the claimant meets it).

The requirement only allows an employer to treat someone differently in defined circumstances, but these are broad and include decisions in offering or refusing employment and affording opportunities for promotion or training.

The critical question, therefore, is when will a requirement to have or not have a particular protected characteristic be an OR?

The Explanatory Notes to the Equality Act (the Explanatory Notes) state that “the requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext” and the EHRC Code states “there must be a link between the requirement and the job”.

An employer would need to provide an objective justification for applying a requirement. The Explanatory Notes provide some examples of when the requirement might be engaged.

• The need for authenticity or realism might require someone of a particular race, sex or age for acting roles (for example, a Black man to play the part of Othello) or modelling jobs.
• Considerations of privacy or decency might require a public changing room or lavatory attendant to be of the same sex as those using the facilities.
• An organisation for deaf people might legitimately employ a deaf person who uses British Sign Language to work as a counsellor to other deaf people whose first or preferred language is BSL.

Employers should note that the subjective views of customers or clients are unlikely to be an OR. In the EU case of Bougnaoui, the employer dismissed the claimant, a Muslim woman who wore a headscarf following a customer complaint. The employer tried to argue the requirement not to wear a headscarf was an OR due to the desires of their customers. The European Court of Justice dismissed this argument as an OR must be “objectively dictated by the nature of the occupational activities”, not the subjective concerns of the customer. 

For completeness, the legislation also allows for ORs for religious organisations or employers with a religious ethos, albeit these are even more narrowly drafted. Employers should be aware that even if the OR criteria for a specific role is met, it will not automatically apply to other jobs within the organisation and analysis should be done on a case-by-case basis. For example, the EHRC Code states that if the trustees of a religious centre are looking to employ for two roles, one to teach religious text and one purely to organise sporting activities, it is unlikely to be lawful to apply the requirement to the second role.

Age discrimination

Uniquely, employers can justify direct age discrimination if doing so is a proportionate means of achieving a legitimate aim.

The scope of the legitimate aim here is not the same as generally used for indirect discrimination. An employer can only justify direct age discrimination to either promote intergenerational fairness or dignity. The supplement to the EHRC Code notes this might include aims such as:

• promoting access to employment for younger people or facilitating the participation of older workers;
• the efficient planning of staff;
• sharing employment opportunities fairly between the generations;
• ensuring the mix of generations of staff to promote the exchange of experience and new ideas;
• rewarding experience; and
• cushioning the blow for long-serving employees.

The employer must show the aim was legitimate in the circumstances and proportionate. For example, in NURMT v Lloyd, the union refused to allow the Claimant to stand for election to its National Executive committee as he would not be able to complete his term before achieving the age of 65. The union sought to justify this measure on the grounds of intergenerational fairness; efficient planning for the composition of the Committee and to be consistent with its policy to facilitate a younger retirement age. The tribunal and EAT rejected the union's aims and held they were not legitimate. There was no evidence the rule encouraged younger members to stand; that having further elections if someone retired would cause hardship; nor was it possible to justify the discriminatory effect because of a desire to be consistent with national policy. 

For completeness, the Equality Act also has some statutory defined exceptions to the rule against direct age discrimination. For example, it is not unlawful to pay A less than B, if the National Minimum Wage (NMW) for A’s age is lower than that of B’s (though note the Government's proposal to remove "discriminatory" NMW age bands).

What should employers relying on an exception to the Equality Act do?

• Carefully document your reasoning for applying a certain provision. Consider whether the decision and reasoning should be reviewed by other parties to ensure it stands up to scrutiny.
• Proportionality is key – remember it is very unlikely that a universal, blanket policy will be proportionate in the circumstances.
• Keep decisions under regular review after they have been taken. The criteria that led you to make a certain decision a few years ago may not apply subsequently.

With thanks to Alex Evans, current trainee in the team, for his help preparing this blog.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2025