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Indirect Discrimination

Indirect Discrimination

Indirect discrimination occurs when an employer applies an apparently neutral Provision Criterion or Practice (PCP) which puts workers sharing a Protected Characteristic at a particular disadvantage and it is not a proportionate means of achieving a legitimate aim, irrespective of the Protected Characteristic, to apply that PCP.

To establish justification, the employer will need to show that its actions or PCP are a proportionate means of achieving the legitimate aim identified. The actions or PCP must be reasonably necessary to achieve that aim. Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of the employer; there is no margin of appreciation.

In determining whether there has been a detriment, it will be necessary to establish a “pool” of people for comparison on a like for like basis of those that have and have not been affected by the provision, criterion or practice. Indirect discrimination is unlawful whether it is intentional or not.

Examples of indirect discrimination

  • A bus company adopts a policy that all female drivers must resit their theory and practical tests every 5 years to retain their category D licence.
  • An employer advertises a position requiring at least 5 GCSEs at grades A to C without permitting any equivalent qualifications. This criterion would put at a particular disadvantage everyone born before 1971, as they are more likely to have taken O level examinations rather than GCSEs.
  • A hairdresser refuses to employ stylists who cover their heads, believing it important for them to exhibit their flamboyant haircuts. Accordingly, Muslim women and Sikh men who cover their hair would be placed at a particular disadvantage.
  • A PCP that all employees must work over the Christmas period. This would have an adverse impact on Christians.
  • A PCP that all employees work full-time hours. This would have a disparate adverse impact on more women with young children than men as women are generally accepted as taking the primary childcare role.
  • An employer starts an induction session for new staff with an ice-breaker designed to introduce everyone in the room to the others. Each worker is required to provide a picture of themselves as a toddler. One worker is a transsexual woman who does not wish her colleagues to know that she was brought up as a boy. When she does not bring in her photo, the employer criticises her in front of the group for not joining in.
  • An airline operates a dress code which forbids workers in customer-facing roles from displaying any item of jewellery. A Sikh cabin steward complains that this policy indirectly discriminates against Sikhs by preventing them from wearing the Kara bracelet.

Have you been indirectly discriminated against?

If so, our employment solicitors can help – please call us on 03456 381381 or email enquiries@ibblaw.co.uk

Marc Jones

Marc Jones

Partner marc.jones@ibblaw.co.uk 01895 201719