Chris Dobbs provides an overview of indirect discrimination in the workplace, explaining what indirect discrimination is and what employers and HR managers need to know about it.
Indirect discrimination claims: A recap
My colleague Chris' recent article on Covid vaccinations raised the topic of the risk of indirect discrimination claims. In that piece he said that a claim relating to a policy requiring staff to be vaccinated would potentially give rise to these sorts of claims.
Indirect discrimination claims are difficult, both to run as a claimant, but also to defend from the employer’s point of view because they rely on several features to satisfy them and there are multiple hoops to both jump through and seek to resist.
What is the definition of indirect discrimination?
The claim exists under section 19 of the Equality Act 2010 which says that it is discriminatory to have a ‘provision, criterion or practice’ which is discriminatory’ which puts a person with a protected characteristic at a disadvantage and, importantly, cannot be shown to be a proportionate means of achieving a legitimate aim.
Examples of indirect discrimination in the workplace
The first example given in the explanatory note to the Act is perhaps the slightly outdated one of a rigid requirement for shift working hours being disadvantageous to women due to childcare requirements.
It is clear why this route is sometimes difficult for a claimant as they must show firstly that they have the protected characteristic (easier in some cases than others) and then establish not only that there is a policy in place but also that the policy is or is likely to place them at a disadvantage.
To read a more in depth overview of what indirect discrimination is, please click here.
What is a ‘PCP’?
A PCP is a provision criterion or practice
We refer to the ‘PCP’ in indirect discrimination cases: the provision, criterion or practice which is equally applicable to everyone on the face of it. In our previous article, this would be the requirement that every member of staff have the Covid vaccine.
Usually, this will be some kind of policy (official or otherwise) which a business imposes. It can, however, be an unauthorised practice by a particular manager or even a custom which has evolved with time, even though it is not formalised.
The classic examples often relate to working time requirements or criteria for promotion or recruitment. It can include one-off events although generally a feature of a PCP is repetition.
What is a 'disadvantage'?
The definition of disadvantage in employment law
Disadvantage here generally takes the same meaning as a detriment elsewhere in the Act.
An individual will need to show that people with their particular protected characteristic suffer more adversely than those without. This means they need to identify a pool of those suffering as against the comparator of someone without that characteristic.
Eweida v British Airways
Identifying this pool can be difficult and it is often a barrier to claims where the disadvantage complained of could affect others without that characteristic too.
A good example is Eweida v British Airways which was well-covered in the media where various courts debated whether the pool was Christians (such as the claimant) or all those with religious beliefs. If the latter, it was not only Christians who were disadvantageously affected by the dress code. The European Court of Human Rights eventually found in Ms Eweida’s favour.
Proving disadvantage in indirect discrimination
Disadvantages are regularly proved on statistical analysis of the difference between those with and without the protected characteristic.
With more companies undertaking gender and race pay reporting exercises this data will be more readily available to potential claimants and now is a good opportunity to ensure that any disparity is not the result of policies; formal or otherwise.
What is the difference between direct and indirect discrimination?
One of the key differences between direct and indirect discrimination is that a claim for indirect discrimination can be defeated if the employer can show that the provision criterion or practice under challenge is a ‘proportionate means of achieving a legitimate aim’. The circumstances in which this defence of justification will succeed have been the subject of many years of case law.
Chris looked at this in a recent article that examined Heskett v Secretary of State for Justice. It looked at indirect age discrimination, something we have written about a lot in the past.
Defending claims of indirect discrimination
There are several opportunities to defend indirect discrimination claims because of the various stages for a potential claimant. These are the characteristic, the PCP, the disadvantage and the employer's defence.
The Characteristic
It is often inadvisable to challenge the fact of the protected characteristic, though it may be appropriate in some cases, particularly disability or belief.
The PCP
It is possible to argue, and hopefully demonstrate, that the alleged practice does not exist. This is much more likely to succeed if the claimant’s situation is unique or they are complaining of a single one-off event.
The Disadvantage
An employer has the opportunity at this stage to challenge the disadvantage which must be real and actually suffered by the complainant. The claimant must also be an innocent party: the EAT rejected an age discrimination case where an individual applied solely to be rejected in order to claim compensation.
The Employer’s Defence
An employer can defend a claim if the PCP is in place to proportionately achieve a legitimate aim. What this means is that, in having the PCP in place, the employer is only doing what is reasonably necessary to achieve a justified result.
How to avoid an indirect discrimination claim
The employer is obliged to have considered steps to achieve that goal which are less discriminatory in their effect. Such as a ban on beards for hygiene reasons being replaced with a requirement to wear appropriate coverings.
Indirect discrimination or disability?
There is significant overlap between indirect discrimination and the special disability-related claim of ‘discrimination arising’ (s15). Claimants are much more likely to bring s15 claims which cannot be justified if the PCP affects them as a result of something stemming from their disability.
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