The background to Indirect Discrimination
Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) in the workplace or to employees. The PCP is normally applied both to those employees who have a protected characteristic and those who do not. The effect of that PCP may be to place those with a protected characteristic at a disadvantage over those who do not. The discrimination is not instantly obvious and often causes employers problems in the workplace.
Unlike direct discrimination, indirect discrimination is not always obvious. Indirect discrimination occurs where the effect of the PCP is that employees who have a protected characteristic are placed at a disadvantage by that PCP when compared to others who do not have that protected characteristic. If someone with a protected characteristic is disadvantaged, then the employer cannot show that the PCP is a proportionate means of achieving a legitimate aim, the PCP is likely to be indirectly discriminatory.
An example would be refusing to hire people unless they are a certain height. While this rule would apply equally to men and women, women are generally shorter than men and would therefore be put at a disadvantage. This may be sex discrimination.
The Supreme Court considered the conjoined cases of Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice  UKSC 27. The claimant represented black and minority ethnic employees (BMEs) who were aged over 35. The PCP applied by the Home Office was that to be eligible for promotion, employees had to pass a certain skills assessment. While this test applied to both BMEs and employees from other backgrounds, the claimant group was able to provide statistics showing that BMEs aged 35 and over were less likely to be able to pass the test, although neither they nor the Home office could provide reasons why this was the case.
The court held that the essential element to be considered was whether there was a causal link between the PCP being applied and there being a disadvantage to a protected group. The claimant in this case did not need to show why they were disadvantaged. Instead, they only needed to prove that they were disadvantaged as a result of the PCP. It would then be down to the Home Office in this case to show that individual BMEs failed the test for another reason such as arriving late or not preparing for the test.
The test for Indirect Discrimination
Following this case, the test for indirect discrimination can now be simplified to the following questions:
- Has the employee applied a PCP?
- Does this PCP affect employees who have a protected characteristic and employees who do not have a protected characteristic?
- Do those employees who have a protected characteristic suffer a disadvantage?
- Is that disadvantage caused by the PCP?
If the answer to all of the above is yes and there are no other substantial matters which contribute to the disadvantage, the employer will have to prove that there is a legitimate reason for applying the PCP in the first place. In practice, proving a legitimate reason can be hard.
How to avoid Indirect Discrimination
This case serves as a reminder to employers to consider their actions and the possible affect they could have before implementing them. Employers should ask themselves questions such as: “If I require my employees to travel in the UK at short notice will this affect women with children more than it would affect men?” or “If I own a hairdressing salon and want all of my employees to have their hair on show at all times, will this affect people who wear headscarves for religious reasons disproportionately?”
What should you be doing now?
Employers should always consider whether their actions would affect a certain protected group more than those who are not protected. If the actions would disadvantage a certain group, the employer should be able to justify the need for those actions or risk facing claims of indirect discrimination at tribunal. The financial costs of indirect discrimination can be significant given the potentially uncapped compensation and the volume of employees that may be affected by indirect discrimination.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.