The Court of Appeal in Onu v Akwiwu & Anr  EWCA Civ 279 and the Employment Appeal Tribunal in The Commissioner of Police of the Metropolis v Keohane  UKEAT 0463_12_0403 have confirmed that the legal test for direct discrimination has not been changed by the Equality Act 2010, even though it uses slightly different wording from the legislation it replaced.
In Onu, two migrant domestic workers had been treated extremely harshly and argued direct race discrimination on the basis that the employer had taken advantage of their immigration status to impose harsh and at times illegal working conditions. The Court of Appeal ruled that this was not direct discrimination, as the fact of the workers’ immigration status was background information.
In Keohane, a police dog handler had been treated badly during her pregnancy and maternity leave, as one of the two sniffer dogs had been taken away from her, without a commitment to return the dog to her on her return from maternity leave. This meant that there was a loss in her earning capacity on her return which lasted several months, and was direct discrimination. She lost the case as the EAT ruled that the Police would have treated any officer who was not able to work for a similar period in the same way and the fact of her pregnancy was therefore part of the background facts and not the cause of the less favourable treatment.
These two cases highlight the importance of ensuring that the facts material to a claim of direct discrimination have to be directly related rather than just background information.