Indirect discrimination is unlawful under the Equality Act 2010.
The Equality Act allows you to take legal action against your employer if you are personally affected by indirect discrimination in the workplace.
This guide is designed to help employees understand, identify and challenge indirect discrimination at work. Certain instances of indirect discrimination may be justifiable by your employer under law, so it is important to understand the legal requirements and what your rights are if you have been a victim.
What is indirect discrimination?
Indirect discrimination refers to situations where an employer has operated a rule, policy or general practice that applies to all employees but disadvantages some more than others. Crucially, the disadvantage must be as a result of membership to a specific protected characteristic group.
There are nine protected characteristics covered in the Equality Act. Your employer’s actions can qualify as indirect discrimination if they negatively affect you more than other employees due to your:
- Gender reassignment
- Marriage or civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
If your employer’s policy or rule negatively and unjustifiably impacts you as a result of one of these characteristics, you may be able to challenge them on the grounds of indirect discrimination. Being a woman, having a disability or transitioning your gender, for instance, should not put you at an unfair disadvantage in comparison to people of different identity groups.
Before acting against indirect discrimination, you must first ascertain if you have grounds to complain against your employer.
To meet the requirements for indirect discrimination, your employer’s policy or actions must be neutral, in that it applies to all employees and does not target people with specific protected characteristics; it must put you at a particular disadvantage, as compared to employees who do not share your protected characteristic; and it must negatively affect all people who share your protected characteristic in the same way.
This final point is important. An indirect discrimination claim will not have merit if you cannot prove that most other members of your protected characteristic group (e.g. most Christians, or most people who have MS) would be negatively affected by the employer’s policy in the same way. This proof can come in the form of:
- General knowledge, e.g. the inability to work on a generally acknowledged religious holiday
- Statistics, e.g. data showing that most primary caregivers are women
- Expert opinion, e.g. expert testimony or peer-reviewed research, demonstrating the additional needs of people with a specific disability
You can only challenge indirect discrimination if the rule or policy in question affects you personally. It can be a discriminatory situation which has already come to pass or a potential situation which may come to pass in future due to a discriminatory policy.
What is the difference between direct and indirect?
Direct discrimination refers to a situation where you are subject to poorer treatment than another person in a similar position, because:
- You have a protected characteristic
- You are perceived as having a protected characteristic (discrimination by perception)
- You are associated with another person who has a protected characteristic (discrimination by association)
To prove direct discrimination, you must show that you have been singled-out for poorer treatment, due to one of these three qualifying factors.
In contrast, indirect discrimination occurs when a group of people with the same protected characteristic are disadvantaged by an organisation’s policy.
The policy in question must be general – in that it applies to everyone – and may include any rule, general practice, system or procedure. Policies which apply to everyone within a certain group (that you happen to be in) can also be the cause of indirect discrimination. For example, the rule may relate to “all sales personnel” or “all employees working on the fourth floor”.
In summary, direct discrimination in the workplace refers to a situation in which someone with a protected characteristic is treated differently. Indirect discrimination is when someone with a protected characteristic is treated the same as everybody else yet unfairly disadvantaged as a result. Unlike direct discrimination, indirect discrimination is often inadvertent and can be difficult to spot.
Can an employer justify their policy or actions?
An employer’s discriminatory actions may be lawful if they can provide objective justification for their policy.
To claim objective justification, your employer must show that their discriminatory action was both reasonable and necessary, in other words, that it is “a proportionate means of achieving a legitimate aim”. This means that a seemingly discriminatory policy may be justified if it is necessary to maintain the effective, normal functioning of the business, and there are no other reasonable alternatives to that policy.
For example, objective justification would apply if a health care centre for Muslim women discriminated against male applicants by specifying in a job advertisement that only women may apply. Due to the patients’ religion, hiring men would be both inappropriate and ineffective. In this instance, the policy is objectively justified as being an occupational requirement, as the job role can only be fulfilled by female employees.
Examples of indirect discrimination in the workplace
The disadvantages which you may experience as a result of indirect discrimination in the workplace include:
- Dismissal, if your protected characteristic leaves you unable to abide by company policy
- Less-favourable employment terms and conditions
- Fewer earning opportunities
- Fewer employee benefits
- Poorer promotion and transfer opportunities
- Limited access to training
- Exclusion from voluntary redundancy
To illustrate, below are three examples showing how indirect discrimination in the workplace may affect people with different protected characteristics.
Indirect religious discrimination
A restaurant introduces a new shift policy which states that all front-of-house staff must work at least one Saturday every month. A Jewish waitress tells the manager that she cannot work on a Saturday, as it is against her religious beliefs. She is threatened with dismissal if she does not comply with the rule. This is indirect discrimination, as the rule applies to all staff, yet negatively affects all those who identify as Jewish.
Indirect sex discrimination
A telesales company offers a free, online management skills course to all its employees. While any employee may sign up, the course is only available for employees to access during off-peak times, after 3 pm. A female staff member who works flexible hours while her children are in school asks if she can access the course earlier, as, at 3 pm, she leaves the office to pick them up. Her request is denied, consequently leaving her with poorer training and promotion opportunities than her co-workers. This is indirect discrimination since the rule applies to all staff yet is more likely to disadvantage female employees, as they are statistically more likely to be primary caregivers.
Indirect racial discrimination
A business offers its existing employees the opportunity to apply for an internal job opening. The advertisement states that only employees with management degrees obtained from UK universities may apply. This would exclude people who gained their degree in another country from applying for the role and could qualify as indirect racial discrimination. This example differs slightly from the previous two, in that the employer may have justifiable reasons for adopting the policy. For example, it may be difficult or impractical for the employer to attempt to verify the quality and relevance of non-UK qualifications.
What can you do if you believe you are a victim of indirect discrimination?
If you believe you have been indirectly discriminated against in the workplace, you should first raise and discuss the issue with your employer. Under the Equality Act, UK employers are legally required to make adjustments, where reasonable, to avoid indirect discrimination.
If the matter cannot be resolved, you have the right to bring a claim to an employment tribunal if you believe you have suffered indirect discrimination in the workplace. In most cases, employees must bring the matter in front of an employment tribunal within three months of the discrimination coming to light.
If you believe you are a victim of indirect discrimination, for example if, as a result of an indirectly discriminatory company policy, you have lost your job or had to resign, take legal advice to understand your options and to ensure your rights are protected and enforced.