What is indirect discrimination?

Indirect Discrimination: What it is & how to avoid it

The mere mention of the word ‘discrimination’ in the workplace is enough to strike fear into the hearts of UK employers. Once the fright takes hold, usually fuelled by high-profile case law judgements and seemingly mega pay-outs (discrimination payments are uncapped), the task of making sure that all your HR Policies and Procedures are tightened and up to scratch lands in someone’s (generally your HR Team) lap.
However, when it comes to an employee successfully winning a claim of indirect discrimination, then the very act of standardising your people policies where everyone is treated equally could well backfire.

Why? Read on……..

Most employers know that it is unlawful to discriminate, and if found to do so risk facing a hefty financial (and potential reputational) penalty. This is never more so when it comes to the nine protected characteristics, as set out in the Equality Act 2010.

However, when it comes to indirect discrimination, it is not always so obvious, sometimes resulting in employers inadvertently discriminating through “blanket” policies or work practices.

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Definition of Indirect Discrimination

Indirect discrimination can occur where there are rules or workplace policies which apply to all employees but which disadvantage an individual or group of employees who have a particular Protected Characteristic. The rule or policy which creates the disadvantage is sometimes referred to as a Provision, Criterion or Practice, also known as a ‘PCP’.

The difference between direct and indirect discrimination

Indirect discrimination is usually less obvious than direct discrimination and is normally unintended.

Generally, it occurs when a rule or plan of some sort is put into place which applies to everyone and is not in itself discriminatory but it could put those with a certain protected characteristic at a disadvantage.

The law states that indirect discrimination can occur when a ‘provision, criterion or practice’ (PCP) involves all these four things:

• The ‘PCP’ is applied equally to a group of people, only some of whom share the protected characteristic.
• It has (or will have) the effect of putting those who share the protected characteristic at a particular disadvantage when compared to others who do not have the characteristic.
• It puts, or would put, the person at that disadvantage.
• The employer is unable to objectively justify it.

Discriminatory policies can be formal or informal, and include one-off decisions, long-term plans and rules that have been decided but are yet to be implemented.
The important point to note is that if a policy applies to everyone in the same way, it is neutral, but it if applies to everyone and has a worse effect on some than others, it is indirectly discriminatory. Which if we’re honest, makes it a bit of a minefield when attempting to introduce or update our policies.

Protected Characteristics

The Equality Act 2010 defined 9 Protected Characteristics, as follows

• Sex
• Race
• Age
• Disability
• Religion or Philosophical Belief
• Pregnancy or Maternity
• Sexual Orientation
• Gender Reassignment
• Marriage or Civil Partnership

Indirect discrimination can occur if a policy or practice puts an employee or group of employees at a disadvantage based on one (or more) of the characteristics listed above. Examples could include the following:

Indirect Racial Discrimination
An example of indirect race discrimination would be a job advert requiring all applicants to have English as their first language. In reality, it’s likely that plenty of candidates could speak English to a good standard even when it is not their native language but would be unable to meet the stated recruitment criteria.

Indirect Religious Discrimination
An example of indirect religious discrimination could be a requirement in a dress code for male employees to be clean-shaven. This would put employees whose religious beliefs forbid them to shave, such as Sikhs, Muslims and certain Jewish sects, at a disadvantage.

Indirect disability discrimination
An example of indirect disability discrimination could be a requirement that no employees are allowed to eat at their workstations or outside of normal breaks. This could indirectly discriminate against an employee with type 1 diabetes who needs snacks between meals to manage their blood sugar levels.

Indirect Sex Discrimination
An example of indirect sex discrimination could be a requirement that all roles in the company are full-time only. As, statistically, women are more likely to have caring roles than men, this requirement could put female employees or job applicants at a disadvantage.

Hidden barriers

In dealing with hidden barriers which are not easy to anticipate or to spot, HR policies and procedures which are reviewed to avoid the risk of indirect discrimination aim to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet and which cannot be shown to be justified.

It is always open to an employer to show that their PCP is justified. The issue of whether a policy or practice can be objectively justified will often be the most important consideration when implementing change or defending a later claim.

HR policies can help avoid indirect discrimination

As an employer, you may justify your policy or procedure by showing that it is ‘objectively justified’. There must be a real business need, for example, health and safety. However, this is often not enough. You must also be able to show that the PCP is a proportionate means of achieving this legitimate aim. In other words, you must show that you have thought about the effects of your practices or measures and considered that this was the least discriminatory way to do things.

Well-drafted HR policies should explain why a particular PCP is considered necessary. For example, wording in a dress code policy in the employee handbook which includes a ban on facial hair should include a statement on why the ban is required. One example of objective justification could be on the grounds of H&S e.g. to ensure the effectiveness of breathing equipment used in industries working with chemicals and other hazardous substances.

To demonstrate that the employer has assessed the risk of indirect discrimination and is taking proportionate action, in this example, the policy would make it clear that the ban on facial hair would only apply to people needing to use the breathing equipment and is not a blanket ban across the organisation. While the ban on facial hair could still constitute indirect discrimination, the organisation could argue that it was a proportionate means of achieving a legitimate end.

Helpfully for employers, case law in this area indicates that it is not enough for an employee to claim at an employment tribunal that a PCP was indirectly discriminatory due to them having a particular Protected Characteristic – they must also be able to show how the PCP directly caused them a disadvantage.

Employers’ responsibilities

Employers should take a proactive approach to regularly reviewing their policies and procedures. Any such review should consider any impact the policies and procedures may have on particular groups and look for any statistical discrepancies which could potentially be used to support a claim for indirect discrimination. For example, a requirement for all employees to work full time and evidence that Flexible Working Requests to go part-time are consistently turned down, could provide evidence of indirect sex discrimination.

However, while equality of policy in the workplace is important, perhaps consider adopting a more flexible and individualised approach to staff to ensure that no one is adversely affected by a certain policy or rule, through measures such as discrimination impact assessments. This might just minimise the chances of indirect discrimination occurring in your workplace.

If you have any questions about indirect discrimination, or you need help with a similar situation in your business, call MAD-HR on 01473 360160 or contact us using our contact page.