Indirect discrimination takes place when an employer applies a provision, criteria or practice (PCP) which puts people with a particular protected characteristic at a disadvantage in comparison to someone without that characteristic.
In most cases, employers would consider a consistent approach and blanket policies to be a good thing, however, this isn’t always the case. If an employer introduces a PCP that puts people with a protected characteristic at a disadvantage, they may risk ending up on the other side of a discrimination claim.
The Equality Act 2010 sets out nine protected characteristics which are:-
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
For indirect discrimination to occur, the PCP will have a detrimental effect on anyone with a particular characteristic, it differs from direct discrimination which only covers circumstances where something is applied to a particular person with a protected characteristic.
For example, if an employer insisted that a female employee had to work a full 9:00 to 17:00 day, this could be directly discriminatory if male employees were able to work flexible or reduced hours. However, if the employer introduced a blanket policy that all employees had to work a full 9:00 to 17:00 day, this would be indirectly discriminatory against women who are likely to have more childcare responsibilities than men which may prevent them from being able to work a full week. The important distinction is whether or not the PCP is something that is applied to all staff.
In order to pursue an indirect discrimination claim, the employee will need to be able to prove that:
- the PCP is unfair to both them and other people who share the protected characteristic; and
- it puts them at a disadvantage in comparison to those that don’t have the protected characteristic.
In some circumstances, indirect discrimination can be justified by an employer where they can show that there is a legitimate business reason for the policy. This may include where it is a necessary requirement for the job or if it is necessary to ensure the employees health and safety.
Think about the roles of policeman or firefighters, in applying for these roles candidates will go through a fitness test to make sure they’re suitable for the job. In theory, this could be indirectly discriminatory as disabled or older candidates will likely be at a disadvantage. However, as these are jobs that can be strenuous and require good physical health, there is a legitimate reason for them.
On the other hand, if a fitness test was introduced for an office based role, an employer is very unlikely to have a legitimate reason for doing this and an employee would probably be successful in claiming indirect discrimination.
Key points to consider
- Is the discriminatory act something which is applied to all staff;
- Does it put people with a particular protected characteristic at a disadvantage; and
- Is there a legitimate reason for the discriminatory act?