A Person Deterred from Applying for a Job May be ‘Less favourably’ Treated Case C-54/07 Feryn [2008] ECR I-05187 (ECJ)

A Person Deterred from Applying for a Job May be ‘Less favourably’ TreatedCase C-54/07 Feryn [2008] ECR I-05187 (ECJ)

(2) The Comparison

Equality Act 2010
23 Comparison by reference to circumstances

(1) On a comparison of cases for the purposes of [direct, and indirect, discrimination] there must be no material difference between the circumstances relating to each case.

(a) The treatment must be less favourable, rather than unfavourable. Macdonald v Advocate General for Scotland [2003] UKHL 34

(b) The Compulsory Comparison

A comparison must be made, although a hypothetical comparator may be used. Glasgow CC v Zafar [1998] ICR 120 (HL)

Changing the employer’s circumstances for the comparison
Grieg v Community Industry [1979] ICR 356 (EAT)

This replaced the old phrase ‘on grounds of …’.

The Explanatory Note (61) to the Equality Act 2010, s.13, stated that this ‘does not change the legal meaning of the definition’. It was merely ‘designed to make it more accessible to the ordinary user of the Act.’

(1) Mixed Ground Cases
Owen and Briggs v James [1982] ICR 618 (CA)

Note though, that compensation may be reduced in accordance with the chances that the same decision would have been made even without the discriminatory element: Chagger v Abbey National [2010] IRLR 47 (CA) [55]-[60].

(2) Discriminatory Motive and the But For Test
(a) The ‘but-for’ test

R v Birmingham City Council, ex parte Equal Opportunities Commission [1989] 1 AC 1156 (HL); James v Eastleigh BC [1990] 2 AC 751 (HL) (3-2), Lord Goff (at 774 B-C):

‘…cases of direct discrimination under section 1(1)(a) can be considered by asking the simple question: would the complainant have received the same treatment from the defendant but for his or her sex This simple test possesses the… virtue that… it avoids, in most cases at least, complicated questions relating to concepts such as intention motive reason or purpose, and the danger of confusion arising from the misuse of those elusive terms.’