Indirect discrimination is unlawful under sex, race, age, sexual orientation and religious discrimination law.
Taking indirect race discrimination as an example, an employer indirectly discriminates against a person on the grounds of race if it applies to that person some form of provision, criterion or practice that it applies, or would apply, equally to people of other races, but:
- the provision puts people of that individual’s race at a particular disadvantage compared with others; and
- the employer cannot justify the provision by showing that it is a proportionate means of achieving a legitimate aim.
Identifying a barrier
The initial key to recognising a possible indirect discrimination issue is identifying that there is a provision, criterion or practice being used. Even insisting that an employee should carry out the existing duties of his or her job can amount to a potentially discriminatory practice. So can including a particular term in a contract of employment, even if the employer has not yet relied upon that term.
Examples
Here are some examples of employment practices that might potentially be discriminatory, with a note of the groups that may be put at a particular disadvantage by them:
- Using a shortlisting criterion that candidates must have a GCSE at Grade A* to C in English Language (certain racial groups/people over a certain age).
- Applying a policy that employees will be considered for promotion only if they are flexible in the hours they will work (women).
- Restricting training opportunities to employees who work full-time (women).
- Requiring employees to work on a Friday after dusk or Sunday (followers of religions that forbid work at these times).
- Using employment contracts that allow the company to move an employee’s place of work to any location in the country (women).
- Enforcing a dress code (followers of religions with rules on dress and appearance).
- Requiring job applicants to have a minimum length of work experience (younger people).
Since the definition of indirect discrimination covers ‘practices’ as well as absolute requirements, even preferences can be challenged as discriminatory. For example, a shortlisting criterion that was a ‘desirable’ characteristic rather than an ‘essential’ one could potentially amount to indirect discrimination.
Assessing the impact of the practice
A provision, criterion or practice is indirectly discriminatory only if it puts people of a particular sex, race, age group, religion or sexual orientation at a particular disadvantage. Unfortunately, the case law in this area does not give a clear picture of which group of people should be used as the basis for assessing the impact of a provision. It is also difficult to predict what an employment tribunal will accept as amounting to a ‘particular disadvantage’. A tribunal is entitled to rely on its own general knowledge of the likely impact of the provision in question, however, and will not necessarily require statistical evidence on the point.
Accommodating differences
The practical solution to this uncertainty is for employers to be aware in a general sense that employment practices can pose indirect discrimination issues if they fail to accommodate those differences between people of different sexes, racial groups, age groups, religions and sexual orientation that can affect their working lives. Your Association can give advice on this.
For example, women are more likely than men to have primary responsibility for childcare and are more likely than men to be the secondary earners within their family. This means that, as a group, they are more likely than men to have broken patterns of employment, they are likely to work shorter hours than men, their flexibility to work longer or changing hours is more limited than men’s and they are less likely than men to be mobile. This indicates that employers need to be aware of the possible indirectly discriminatory effect of any employment practices that require employees to work full-time, flexible hours, that reward those who have built up certain periods of continuous periods of employment or experience, or that require employees to be mobile.
The differences between racial groups and religions that have occupational relevance are mainly linked to language, dress, religious observance, and the source and standard of educational qualifications. For example, employers need to be aware of the possible indirectly discriminatory effect of employment practices that require certain levels of competence in spoken or written English, impose dress codes or fail to accommodate the need of employees to take time off for religious observance.
In terms of age discrimination, employers should bear in mind that people in older age groups will have difficulty in meeting rules that reward recently-acquired qualifications whereas those in younger age groups will be adversely affected by rules that link any employment advantage to length of experience or service.
It should be emphasised, however, that employment practices that put certain groups at a particular disadvantage are not unlawful if they can be objectively justified.
Justification
In many cases of potential indirect discrimination, the crucial question will be whether the employer can justify adopting the provision, criterion or practice at issue. If it can, then it is acting perfectly lawfully, even if the requirement puts certain groups at a particular disadvantage. This is also the question that needs to be answered before it can be decided whether an employer has acted unlawfully in treating someone less favourably because of his or her age.
The provision or treatment at issue will be justified, and therefore lawful, if it aims to meet a legitimate business need, and it is an appropriate and reasonably necessary way of meeting that need. When deciding whether justification has been established, an employment tribunal will balance the reasonable needs of the employer against the discriminatory effect of the provision. An employer will find it difficult to justify a provision that has a marked impact on a particular group if it could achieve its objective by another means that has no, or a smaller, discriminatory effect.
Take, for example, an employer that does not extend its usual training and development opportunities to workers on the twilight shift. Assume that the twilight shift is made up predominantly of women, who find that they can combine those hours of work with their family responsibilities. Assume that the rest of the employer’s workforce is made up predominantly of men. The employer needs to justify its policy of not giving workers on the twilight shift equal development opportunities. It will not be able to do so if it has been acting on the sex-based assumption that, since these shift workers are mainly women, they are working for pin money only and are not interested in developing their skills or progressing within the company.