Indirect Discrimination in the Workplace

How do you best avoid discriminating against an individual? The obvious first thought that comes to mind tends to be treating everybody equally. But what if by doing so you place somebody in a disadvantaged position from the start through indirect discrimination?

Most companies promote a zero-tolerance policy in this respect. However, making sure that no discriminative treatment happens in the workplace requires regular reviews of policies, procedures, and rules. As your business and workforce changes, aspects you never thought about might crop up.

In this article, we will clarify what direct discrimination and indirect discrimination is, discuss how it occurs in practice and how to avoid it.

You don’t have to deal with these situations alone. Call our experienced HR advisors today to discuss tackling indirect discrimination in the workplace, on 0800 470 2019.

What does indirect discrimination mean?  

Indirect discrimination is when a rule, policy or practice that applies the same to everyone places some people at a disadvantage.

How can indirect discrimination occur in the workplace?

Indirect discrimination occurs when applying the same treatment to everybody leaves individuals or groups worse off than the majority. Often, companies or individuals end up discriminating against others even when they think they treat them fairly.

Employers need to ensure all practices within the business, organisation and workplace follow the Equality Act 2010 in preventing indirect discrimination.

Probably the most straightforward cases of indirect disability discrimination relate to overlooking a reasonable adjustment in the workplace. When a workplace rule fails to accommodate the needs of disabled people and employees, it will leave them disadvantaged and treated worse. 

In a 2018 case law, an employee with ulcerative colitis needed easy access to the toilet, due to their condition. When under stress, the symptoms tended to aggravate. So, the company provided her with a designated parking space near to a toilet.

However, when she started working on a different site, they could not guarantee the same adjustment. She needed to park on a first come, first served basis, and parking in an undesignated spot incurred a sanction. While the employer told her they would not sanction her, she still feels ill with stress.

This example highlights how you need to review and reconsider aspects that you haven’t come across previously. Not doing so will expose you to having to deal with indirect discrimination claims in an employment tribunal.   

How to avoid indirectly discriminating against employees 

You might think that you cannot do enough to adapt your policies and practices for all possible situations. How do you offer everybody equal opportunities without certain groups being treated differently, but also acknowledge individuality and personal difficulties?

Start by practicing openness and encouraging feedback from your employees. A company culture that empowers people to come forward and suggest adjustments will contribute towards an inclusive environment.

You can apply the following steps to prevent indirect discrimination:

• Use surveys to assess the impact of new policies, practices, and rules in the workplace.
• Communicate the purpose of every such new policy, stay clear and consistent in your communication.
• Consider and discuss alternatives that will allow for reasonable adjustments.
• Document each of these steps for further reference.
• Repeat whenever necessary, such as when a situation occurs that might reveal a need to change the policy or practice.

Your business will only have to gain from staff pro-actively giving feedback and advice and personally engaging in the process.

Difference between direct and indirect discrimination

Most of us have an awareness of what direct discrimination looks like. It basically means an individual is discriminated against and treated worse, or a group of people are treated unfavourably because of one of nine protected characteristics.

When indirectly discriminated against, workers face disadvantages from unfair company policies that puts them in a bad place to start with.

So, how does direct or indirect discrimination occur in the workplace? We will demonstrate with real-life examples.         

An employer directly discriminates against younger people if they constantly skip them from promotion due to their age.  Also, they discriminate when preferably choosing a high percentage of women for redundancy, compared to the gender distribution within the company. Both are instances of direct discrimination.

When it comes to indirect discrimination examples, you might not always spot them that easily.

Let’s say an employee has recently had a diagnosis of ADHD. Due to their neurodivergent condition, this staff member will benefit from short, regular breaks. Swapping often between tasks helps them focus better. Also, on days when they struggle in the busy office environment, they would fare better if working from home.

Their line manager agrees with the short, regular breaks, but expresses concerns over fluctuating schedule and performance. They point out how company policies only allow flexible working arrangements if approved one month in advance. Next, they decide to put the employee in a meeting to discuss their capacity.

Lack of knowledge about neurodivergent conditions makes them question the employee’s fitness for the job. By doubting the employee’s real need for an immediate reasonable adjustment, the line manager indirectly discriminates against them.  

Types of indirect discrimination

When discussing direct discrimination and indirect discrimination in the workplace, both refer to somebody suffering a disadvantage due to a protected characteristic.

UK law identifies nine protected characteristic:

1. Age
2. Disability (including mental health complications)
3. Gender reassignment
4. Marriage and civil partnership
5. Pregnancy and maternity
6. Race
7. Religion and belief
8. Sex
9. Sexual orientation

How can an employee suffer disadvantages due to general rules and practices in the workplace?

Certain policies and procedures might fail to recognise the specifics and boundaries of one or more protected characteristics.

Let’s use some of these characteristics to look at indirect discrimination examples in different types of UK workplaces.

An employee who has recently returned from maternity leave might need a space to breastfeed their child. Asking the employee to either stop breastfeeding or go home in order to do so can amount to discriminating against her due to maternity.  

An example of indirect sex discrimination can refer to the employer imposing 8am as starting hours for all employees. This might look fine at a first glance. However, many women tend to drop their children off at school in the morning. An inflexible policy about starting hours will leave women disadvantaged.

The same rule applies if a company requires all its employees to work full time. As women tend to take on childcare more than men, this will likely discriminate against employees of the feminine sex.

Indirect racial discrimination in the workplace

Examples of employees indirectly discriminated against due to their race or nationality might be easiest to spot.

Unfortunately, we have seen job adverts across portals that still specify the candidate must speak native English. This automatically disadvantages individuals of different nationalities, regardless of their ability to speak the language at the required professional level.

Requesting that only candidates with a number of years’ experience in the UK also amounts to indirect discrimination. Employers can specify the kind of skills and professional knowledge the candidate needs without discriminating against applicants.

When it comes to qualifications, companies can keep certain requirements if they can show the necessity for professional training obtained in the UK. For example, accountancy in the UK and in France or Poland will differ according to national laws and systems.

However, it can be discriminatory for the job advert to specify that only degrees obtained in a UK university are accepted.  

Indirect discrimination on religion in the workplace

UK law guarantees the freedom to have religious or philosophical beliefs and practice them as part of a lifestyle. A good example of such a belief that does not necessarily relate to a religion is ethical veganism. Vegan employees might require separate refrigeration space to keep the food for their meals at work.

Preventing an individual person from observing their religious duties by imposing one inflexible rule to all will discriminate against them.

A health care provider might decide to request all staff members to work one full weekend a month. However, asking practicing Jewish people to work on Saturday will go against their religion. The organisation needs to show flexibility in this case.

The same goes for practicing Christian Catholic people who attend mass on either Saturday evening or Sunday morning.

Don’t get caught out on aspects you don’t have knowledge about. By promoting a culture of openness and trust you will encourage your employees to approach and discuss them with you. This way, you avoid ending up with a discrimination or harassment claim on your hands.

Get advice from our HR team

Many organisations risk indirectly discriminating against their employees without even realising it. Our experienced advisors have seen such situations develop and they helped companies move forward in a positive manner.

To learn more about direct and indirect discrimination and objective justification get in touch with one of Crone's experts on 0800 470 2019.