Spotting Indirect Discrimination
Sometimes discrimination can be easy to identify if for example you have been turned away at a bar because you are gay. This is called direct discrimination and occurs when you are treated differently because of a protected characteristic. Spotting indirect discrimination can be more difficult.
However, there are times when you may have been treated the same as everybody else but this has a worse effect on you because of who you are. The Equality Act 2020 calls this indirect discrimination.
Indirect discrimination occurs when an employer is apparently applying a neutral provision or criterion or practice which puts employees who share a protected characteristic at a particular disadvantage. Employers know that it is unlawful to discriminate and if found doing so, they can face substantial penalties.
In this article, we aim to set out the requirements for indirect discrimination that arise in an employment context and give an insight to the types of remedies available to you should you be subject to this type of discrimination.
If you think you have been subjected to indirect discrimination, then get in touch to understand your options.
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What are the requirements for indirect discrimination? S19(2) Equality Act 2010
For indirect discrimination to take place, four requirements must be met:
- The employer applies (or would apply) the provision, criterion or practice equally to everyone within the relevant group including a particular worker
- The provision, criterion or practice puts, or would put, people who share the worker’s protected characteristic at a particular disadvantage when compared with people who do not have that characteristic
- The provision, criterion or practice puts, or would put, the worker at a disadvantage;
- And the employer cannot show that the provision,criterion or practice is a proportionate means of achieving a legitimate aim
A provision, criterion or practice can be indirect discrimination if it has an adverse effect on someone because they hold any of the following protected characteristics as listed in the Equality Act (2010):
- Gender reassignment
- Marriage or civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
What constitutes a provision, criterion or practice (PCP)?
Although this is not defined in the Act, interpretation is wide. This can include conditions, criteria, arrangements, informal practices, prerequisites or provisions and can also include a ‘one off’ or discretionary decision.
Example: An employer has only allowed men to attend a developmental training course and not the women in the team. This is an example of an arrangement, provision criterion or practice. This arrangement indirectly discriminates against women and puts them at a particular disadvantage. The employer must show that the practice can be objectively justified.
The PCP must be neutral. It should be applied to everyone in the relevant group whether or not they have the protected characterisitc. If it is not expressed in a neutral way, but does apply to people with a protected characteristic it is likely to amount to direct discrimination
What does ‘would put’ mean?
The requirement within the Act that the provision, criterion, practice puts or “would put” people with the shared characteristic at a particular disadvantage when compared with those who do not have the protected characteristic. This allows challenges to provisions which have not yet been applied and would have a discriminatory effect.
Example: In an employment contract, there is a clause that says employees have to travel at short notice due to business demands. This clause therefore places women at a particular disadvantage. It also places women generally at a disadvantage, as they’re more likely to be the carers of children. Therefore, this clause may be challenged before anyone was actually asked to travel at short notice.
What does “at a disadvantage” mean?
This is also not defined in the Act but can include a denial of an opportunity, choice or rejection or exclusion. The disadvantage does not have to be quantifiable and doesn’t have to involve any financial loss, but an employee can reasonably say that they would have preferred to be treated differently.
In some cases, the link between the protected characteristic and the disadvantage might be obvious but in others less so.
Example: An employer invites seasonal workers to take an opportunity to receive more commission within a limited time frame. By writing to all workers at the last known address the employer puts migrants at a disadvantage, this is because these workers normally return to their home country during the winter months, and so they are unlikely to apply for the commission within the period.
The Comparative Approach – Indirect Discrimination
Once it is established that a PCP puts people with a shared characteristic at a particular disadvantage, then the next stage is to consider the comparison between workers with the characteristic and those who do not.
The people used in this comparison are called the ‘pool for comparison’. When looking at the pool, a comparison must be made between the impact of the PCP on those without the relevant protected characteristic and its impact on people with the protected characteristic
It is not enough that the PCP puts a particular disadvantage on a group of people who share a protected characteristic. It is not enough to just be part of that group of people. You have to show that the PCP put the relevant group of people with the relevant protected characteristic at a disadvantage and you as an individual (who shares that protected characteristic).
Example: A hotel puts in a dress code that forbids women to cover their hair. This would indirectly discriminate against Muslim women. A Muslim employee complains about this, however, she no longer observes the articles of the Islam faith so she has not herself been put at a particular disadvantage and could not bring a claim for indirect discrimination.
When can a PCP be justified?
Indirect discrimination is unlawful even when the intention behind it was not to discriminate. There is no requirement to show that the discrimination was deliberate.
Example: An employer asks new employees to bring in a photo of them when they were babies. One female employee does not want to do this as they were born male and they do not want to show other colleagues that she was male. The employer criticised her in front of a group of people for not joining in. It would not be a defence for the employer to argue that the indirect discrimination was accidental.
Provisions must be justified and proportionate to achieving a legitimate aim
If the employer shows that the PCP was a ‘proportionate means of achieving a legitimate aim,’ then it will not amount to indirect discrimination’. The burden is on the employer to prove that the provision is justified.
The aim of the PCP should not be discriminatory in itself and must represent a real, objective consideration. The health and welfare of the individuals may qualify as a legitimate aim provided that the risks are evidenced.
Even if the aim is a legitimate one, the means of achieving it must be proportionate, which involves a balancing exercise. An Employment Tribunal may wish to conduct an evaluation of the discriminatory effect of the PCP against the employer’s reasons for applying it.
Example: A restaurant owner has forbidden male employees to have beards. This rule may amount to religious discrimination against Sikh or Muslim workers in a factory. If the aim of the provision is to ensure food hygiene is of a satisfactory standard that this would be a legitimate aim. However, this has to be a proportionate means of achieving this aim. The Employment Tribunal will closely look at the reasons given by the restaurant owner as to why they cannot fulfill the same food hygiene requirements with less discriminatory means, for example using a mask or snood.
Remember, indirect discrimination occurs when:
- There is a policy or provision that applies to everyone in the same way
- It places employees who share your protected characteristic at a disadvantage
- It places you personally at a disadvantage
- The employer applying the policy or provision cannot justify the discrimination
Indirect Discrimination – Compensation
If there has been indirect discrimination at work, the compensation available is the same as other discrimination claims.
When a Claimant succeeds, an employment tribunal may do some or all of the following:
- Order the Respondent to pay compensation.
- Make an appropriate recommendation aimed at reducing the adverse effect of the indirect discrimination on both the Claimant and the wider workforce.
- Make a declaration as to the rights of the Claimant and the Respondent in relation to the matters to which the proceedings relate.
The most common “remedies” available for indirect discrimination claims are:
Financial Loss – This covers the financial loss caused. For example, if you were passed by for a promotion that amounted to indirect discrimination and the new position came with a higher salary, this may form part of your financial loss.
Injury to Feelings – An award for injury to feelings is to compensate and not to punish, and is designed to address the anger, distress, and upset caused by the indirect discrimination. The award for injury to feelings is separated into three bands:
Bands for Injury to Feelings:
|Band||Vento (December 2002)||Da’Bell (September 2009)||Updated – Claim brought after 06 April 2022|
|Top band for the most serious cases, such as where there has been a lengthy campaign of harassment. wards can exceed this only in the most exceptional cases.||£15,000 – £25,000||£18,000 – £30,000||£29,600 to £49,300|
|Middle band for serious cases which do not merit an award in the highest band.||£5,000 – £15,000||£6,000 – £18,000||£9,900 to £29,600|
|Bottom band for less serious cases, such as a one-off incident or an isolated event.||£500 – £5,000||£600 – £6,000||£990 – £9,900|
Personal Injury – This can form part of your claim if an act of indirect discrimination caused personal injury. There is clearly an overlap with injury to feelings.
The Tribunal can also make an award for the following, but these are rare:
Aggravated damages – Aggravated damages are awarded in the most serious cases where the behaviour of the Respondent has aggravated the Claimant’s injury to feelings.
Exemplary or “punitive” damages – Such an award is rare and can be awarded to punish the Respondent, rather than compensate the Claimant. This award is available in limited cases where the compensation itself is an insufficient punishment and the Respondent’s conduct is either:
- Oppressive, arbitrary or unconstitutional action by servants of the government.
- Calculated to make a profit which could exceed the compensation otherwise payable to the Claimant.
Usually, unless there is also some financial loss that can be attributed to the indirect discrimination, the usual award is for injury to feelings only.
Navigating discrimination claims can be stressful, lengthy, and distressing. If you think you have been indirectly discriminated against, please contact us. We have years of experience in dealing with discrimination claims and can guide you through the process with ease and confidence.