Indirect discrimination

Indirect discrimination

This form of discrimination is relatively subtle.  It arises where an employer’s 'provision, criterion or practice' (“PCP”) these are decisions, practices or policies that ostensibly appear to treat all employees in the same way but, in effect, disadvantage a particular group of employees with a particular characteristic. Where this happens, the employer’s conduct will be unlawful indirect discrimination unless it can objectively justify its actions as a legitimate aim.

Section 19 EA states:

“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

Defences to indirect discrimination

The defence to indirect discrimination is built into the definition (s.19(2)(d) EA).  It is often called the objective justification test. To defend a claim of indirect discrimination the employer needs to show that there was a legitimate aim behind implementing the discriminatory provision, criterion or practice (‘PCP’) i.e. that there was a real business need for it, and that the PCP was a proportionate way to achieve that aim considering its discriminatory impact.     

Example of indirect discrimination

The classic example of indirect discrimination is an employer requiring an employee to work full-time. This requirement could disadvantage women as a group, since women in society as a whole bear a greater part of domestic and childcare responsibilities than men and are more likely to want (or need) to work part-time. Unless the employer can objectively justify the need for a full-time worker to do the job, the requirement could be indirectly discriminatory against a woman with childcare responsibilities.