Indirect discrimination

Discrimination is when you treat an employee less favourably than other members of staff. This is typically due to gender, race, disability, or sexual orientation.

But even if your business puts in policies to ensure it doesn’t happen, there are subtle instances that can still affect your organisation.

This guide explores a hidden form of prejudice and the employment laws you must follow.

What is indirect discrimination?

It takes place in a workplace when a provision, criterion, or practice (PCP) you adopt has the effect of disadvantaging a group of people with a protected characteristic.

It’s important to distinguish this from direct discrimination, which occurs where, because of a protected characteristic, an employer treats an employee less favourably than they would treat others.

Unlike direct discrimination, you can potentially justify forms of indirect discrimination if you can demonstrate the PCP represents a proportionate means of achieving a legitimate aim.

Indirect discrimination applies to all protected characteristics under the Equality Act, with the exception of pregnancy and maternity, although indirect sex discrimination may apply in pregnancy and maternity situations.

Tribunals will focus on whether an employer can demonstrate they have a legitimate aim for their actions.

In bringing a claim, it is first down to the employee to demonstrate that they have been subjected to indirect discrimination at work. Following this, the employer must then show that this treatment is objectively justifiable.

The different types of indirect discrimination

This issue can take many forms and it’s good business practice to be aware of how it can occur. The most common instances involve:

• Gender reassignment.
• Marriage and civil partnership.
• Pregnancy and maternity.
• Religion and belief.
• Sexual orientation.

One of the most prevalent indirect discrimination examples is a situation where an employer requires their employees to work full-time.

This PCP could potentially disadvantage women overall as they’re more likely to want, or need, part-time hours to facilitate child caring arrangements.

Unless you can objectively justify this requirement (such as demonstrating it’s critical to the business that all employees work full-time), this could be deemed to indirectly discriminate against women.

An example of indirect racial discrimination could be a PCP that prohibits certain hairstyles in the workplace.

If an employer wished to ban cornrows or dreadlocks, they’d be more likely to affect certain racial groups than others and may indirectly discriminate against them.

An employer in this situation may struggle to objectively justify this requirement and should reconsider if such a rule is necessary.

On the flip side of this, a fire service may have in place a PCP that requires applicants to complete various physical tests before being offered a role.

Indirect age discrimination examples can confuse some employers. On the face of it, this might seem like age discrimination, given an older person could be less physically capable than a younger person, and could potentially also be an example of indirect disability discrimination.

However, since the role of a firefighter is physically strenuous for the purposes of protecting the health, safety, and welfare of individuals, it’s more likely to be a legitimate aim.

The importance of business fairness

You need to ensure you’re familiar with the rules surrounding indirect discrimination and be aware of it potentially arising when they are establishing workplace processes.

Remember, a successful claim for discrimination could result in an unlimited award from an employment tribunal.

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