Indirect discrimination is unlawful under the Equality Act 2010. Employees may be able to take legal action against their employer if they are unlawfully subjected to indirect discrimination in the workplace.
While preventing unlawful discrimination is a legal obligation for employers, it is also proven to be advantageous for organisations to nurture diverse workforces and foster inclusive cultures. Those with protected characteristics who are able to flourish at work can contribute a broader set of skills and perspective, which in turn boosts productivity and morale, and enhances your employer brand.
In this guide, DavidsonMorris explain the obligations on employers to prevent employees being indirectly discriminated against at work, and in what circumstances it may be lawfully justifiable to.
What is indirect discrimination?
Indirect discrimination refers to situations where an employer has operated a rule, policy or general practice that applies to all employees but disadvantages some more than others. Crucially, the disadvantage must be as a result of membership to a specific protected characteristic group.
There are nine protected characteristics covered in the Equality Act. The employer’s actions may be considered indirect discrimination if they negatively affect one employee more than others due to their:
- Age
- Disability
- Gender reassignment
- Marriage or civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
If the employer’s policy or rule negatively and unjustifiably impacts someone as a result of one of these characteristics, they may be able to bring a legal challenge on the grounds of indirect discrimination. Being a woman, having a disability or transitioning gender, for instance, should not put someone at an unfair disadvantage in comparison to people of different identity groups.
Who can bring a claim for indirect discrimination?
Employees have to prove that they have the required grounds in order to make a claim for indirect discrimination.
To meet the requirements for indirect discrimination, the employer’s policy or actions must be neutral, in that it applies to all employees and does not target people with specific protected characteristics; it must put the employee at a particular disadvantage, as compared to employees who do not share their protected characteristic; and it must negatively affect all people who share that particular protected characteristic in the same way.
This final point is important. An indirect discrimination claim will not have merit if the employee cannot prove that most other members of that protected characteristic group (e.g. most Christians, or most people who have MS) would be negatively affected by the employer’s policy in the same way. This proof can come in the form of:
- General knowledge, e.g. the inability to work on a generally acknowledged religious holiday
- Statistics, e.g. data showing that most primary caregivers are women
- Expert opinion, e.g. expert testimony or peer-reviewed research, demonstrating the additional needs of people with a specific disability
It can be a discriminatory situation which has already happened, or it can be a potential situation which could happen in the future due to a discriminatory policy.
In addition, an employee can only bring a claim for indirect discrimination if the rule or policy in question affects them personally.
What is the difference between direct and indirect?
Direct discrimination refers to a situation where someone is subject to poorer treatment than another person in a similar position, because:
- They have a protected characteristic
- They are perceived as having a protected characteristic (discrimination by perception)
- They are associated with another person who has a protected characteristic (discrimination by association)
To prove direct discrimination, the employee must show they have been singled-out for poorer treatment, due to one of these three qualifying factors.
In contrast, indirect discrimination occurs when a group of people with the same protected characteristic are disadvantaged by an organisation’s policy. The policy in question must be general – in that it applies to everyone – and may include any rule, general practice, system or procedure. Policies which apply to everyone within a certain group (that the employee happens to be in) can also be the cause of indirect discrimination. For example, the rule may relate to “all sales personnel” or “all employees working on the fourth floor”.
In summary, direct discrimination in the workplace refers to a situation in which someone with a protected characteristic is treated differently. Indirect discrimination is when someone with a protected characteristic is treated the same as everybody else yet unfairly disadvantaged as a result. Unlike direct discrimination, indirect discrimination is often inadvertent and can be difficult to identify.
Can an employer justify their policy or actions?
An employer’s discriminatory actions may be lawful if they can provide objective justification for their policy.
To claim objective justification, the employer must show that their discriminatory action was both reasonable and necessary, in other words, that it is “a proportionate means of achieving a legitimate aim”. This means that a seemingly discriminatory policy may be justified if it is necessary to maintain the effective, normal functioning of the business, and there are no other reasonable alternatives to that policy.
For example, objective justification may apply if a health care centre for Muslim women discriminated against male applicants by specifying in a job advertisement that only women may apply. Due to the patients’ religion, hiring men would be both inappropriate and ineffective. In this instance, the policy is objectively justified as being an occupational requirement, as the job role can only be fulfilled by female employees.
Examples of indirect discrimination in the workplace
Examples of unfair treatment as a result of indirect discrimination in the workplace could include:
- Dismissal, if the protected characteristic leaves the employee unable to abide by company policy
- Less-favourable employment terms and conditions
- Fewer earning opportunities
- Fewer employee benefits
- Poorer promotion and transfer opportunities
- Limited access to training
- Exclusion from voluntary redundancy
To illustrate, below are three examples showing how indirect discrimination in the workplace may affect people with different protected characteristics.
Indirect religious discrimination
A restaurant introduces a new shift policy which states that all front-of-house staff must work at least one Saturday every month. A Jewish waitress tells the manager that she cannot work on a Saturday, as it is against her religious beliefs. She is threatened with dismissal if she does not comply with the rule. This is indirect discrimination, as the rule applies to all staff, yet negatively affects all those who identify as Jewish.
Indirect sex discrimination
A telesales company offers a free, online management skills course to all its employees. While any employee may sign up, the course is only available for employees to access during off-peak times, after 3 pm. A female staff member who works flexible hours while her children are in school asks if she can access the course earlier, as, at 3 pm, she leaves the office to pick them up. Her request is denied, consequently leaving her with poorer training and promotion opportunities than her co-workers. This is indirect discrimination since the rule applies to all staff yet is more likely to disadvantage female employees, as they are statistically more likely to be primary caregivers.
Indirect racial discrimination
A business offers its existing employees the opportunity to apply for an internal job opening. The advertisement states that only employees with management degrees obtained from UK universities may apply. This would exclude people who gained their degree in another country from applying for the role and could qualify as indirect racial discrimination. This example differs slightly from the previous two, in that the employer may have justifiable reasons for adopting the policy. For example, it may be difficult or impractical for the employer to attempt to verify the quality and relevance of non-UK qualifications.
How to avoid indirect discrimination
Employers should take a proactive approach to reviewing and updating their organisation’s policies, procedures, and rules to reduce the risk of unlawful discrimination. It is advisable to have a specific equal opportunities policy that outlines the standards and expectations within your organisation to promote and encourage equality and diversity and state that unlawful discrimination is not acceptable.
However, in practice, indirect discrimination can be difficult to identify. Taking a collaborative approach with your workforce is the most effective way to be able to understand and take action to address potential areas of indirect discrimination risk within your organisation’s rules and processes. By fostering an open and transparent culture, inviting feedback and dialogue, and taking employee input seriously, you can help to mitigate discrimination risks.
This could include use of regular employee surveys and encouraging managers to invite informal feedback from their teams. You should also ensure that, when introducing any new policy or procedure, it is clearly explained to your workforce – including the reasons for the change. Again, invite feedback on any potential discrimination issues. If alternatives or suggestions are put forward, these should be seriously considered.
Also ensure that all activity relating to anti-discrimination are documented for your records; in the event of a discrimination complaint, you will then be able to evidence the steps you have taken to be proactive.
How to deal with complaints for unlawful indirection discrimination
Employees should be made to feel comfortable raising concerns, without fear of any resulting reprisals or any unfair treatment.
There should be a clear process for employees to make a complaint, usually detailed within the equal opportunities policy. The process should typically involve the employee raising the concern with their employer as a grievance, who must then consider the issue fairly and lawfully. This may involve consideration of making reasonable adjustments to avoid unlawful indirect discrimination.
If the employee does not consider the matter addressed, they may be able to make a claim to the tribunal for unlawful discrimination.
Need assistance?
DavidsonMorris’ business employment specialists support employers with all aspects of workplace discrimination, including advice and guidance relating to indirect discrimination. We work with employers both dealing with discrimination complaints and to support with avoiding discrimination through effective policies and practices. Through our fixed fee service, Triple A, employers gain unlimited access to employment law expertise for a low monthly fee. For more information about Triple A or on a specific indirect discrimination matter, contact us.
