INDIRECT DISCRIMINATION

A guide to indirect discrimination from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on indirect discrimination, please contact us as soon as possible.

This web page should be read in conjunction with the web page DISCRIMINATION - PROTECTED CHARACTERISTICS

What is indirect discrimination?

Indirect discrimination is prohibited under section 19 of the Equality Act 2010 and occurs where:

an employer applies to an employee a provision criterion or practice (PCP)
the employee has a protected characteristic
the employer applies (or would apply) that PCP to persons who do not have that protected characteristic
the PCP puts or would put the employee at a particular disadvantage when compared to other persons without that protected characteristic
the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

The relevant protected characteristics are: age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; and sexual orientation.

The exception is pregnancy and maternity.

The Equality Act 2010 (Amendment) Regulations 2023, a new provision of indirect associative discrimination has been introduced under section 19A of the Equality Act 2010. The same provisions for ordinary indirect discrimination apply but the extend to an employee who does not share a protected characteristic with a group that is placed at a particular disadvantage arising from the PCP, but who nonetheless suffers together with that group.

Justification

There will be no indirect discrimination if an employer’s actions are justified. To establish justification, an employer will need to show that there is a legitimate aim (ie a real business need) and that the PCP is proportionate to that aim.

Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of your employer.

In other words, indirect discrimination occurs where the employee’s employment is subject to an unjustified condition which because of their protected characteristic, the individual finds it more difficult to meet.

Examples are:

a role is advertised as requiring at least five GCSEs (with no equivalents) where everyone born before 1972 is likely to have taken ‘O’ level [age]
a role is advertised as requiring at least 10 years’ experience is likely to disadvantage younger employees [age]
a requirement that employees have perfect hearing is likely to disadvantage someone who is hearing impaired [disability]
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. This is likely to disadvantage a transsexual woman who does not wish her colleagues to know that she was brought up as a boy [gender reassignment]
a requirement to provide benefits to husbands and wives is likely to disadvantage those employees in a civil partnership and may not be justified [marriage and civil partnership]
a requirement that all males have no facial hair is likely to disadvantage Sikhs who traditionally do not cut their hair [race]
to work on a Sunday is likely to disadvantage some of the Jewish faith [religion or belief]
full-time work is likely to disadvantage women with small children as they are generally accepted as taking the primary childcare role [sex]
a requirement to provide benefits to husbands and wives is likely to disadvantage employees in a civil partnership and may not be justified [sexual orientation].

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 PCP.

What remedies are available for indirect discrimination?

If an employee believes that an employer (or other person) has indirectly discriminated against them they can bring an employment tribunal claim.

Employment tribunals can award unlimited compensation, which can include an award for injury to feelings and financial loss because of the discrimination.

How long do you have to bring an employment tribunal claim?

An employment tribunal claim for indirect discrimination must be received by a tribunal within 3 months of the complaining act (ie 3 months less 1 day). This can be the last act in a series of detrimental acts over a period of time.

The time limit can be extended during Acas early conciliation, which must be started before the time limit has expired.

The time limit is a strict one and will only be extended in certain circumstances.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Why choose Marjon Law for indirect discrimination advice?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, many of which involved indirect discrimination.

As specialist employment lawyers, our clients' interests are paramount to us.

We ensure that all our clients receive the best advice possible.

We will advise on indirect discrimination and any subsequent employment tribunal claim.