03 Sep 2018
Indirect discrimination happens when:
A person (A) discriminates against another (B) if A applies a provision, criterion, or practice that disadvantages a certain group of people who share a relevant protected characteristic, and B, who has that characteristic, suffers less favourable treatment because of this.
So, to sum up, indirect discrimination is when you treat someone the same as everyone else, but your treatment of the person has a negative effect on them because of their protected characteristic.
If someone believes that you or somebody else has discriminated against them, they can raise a grievance or even take legal action.
You might mean well and think that promoting equality and having a zero tolerance for discrimination of any kind would mean treating everyone the same, but it’s not that simple. Because of how different everyone is, treating people exactly the same can be discriminative.
What are the Protected Characteristics?
There are nine of them. But it’s worth noting that only eight apply to indirect discrimination (number 5 on the following list does not).
- Disability (including mental health complications).
- Gender reassignment.
- Marriage and civil partnership.
- Pregnancy and maternity (doesn’t apply to indirect discrimination).
- Religion and belief.
- Sexual orientation.
Everyone has his or her own version of these nine characteristics.
You can read more about each one in the Equality Act 2010.
Let’s go through some examples of indirect discrimination in the workplace.
Indirect religious discrimination
A shop manager introduces a rule that all employees must work at least two Saturdays each month in the shop.
This new rule could be indirect discrimination against any employees who are practising Jews, since Saturday is a religious day in Judaism.
Indirect racial discrimination
Examples of indirect discrimination in terms of race could include prohibiting certain hairstyles in your workplace.
For example, banning cornrows or dreadlocks, as in this indirect discrimination case, would be more likely to affect certain racial groups than others, and could leave somebody feeling indirectly discriminated against.
Another example would be if you were hiring for a role, and you demanded that applicants must hold UK qualifications. This could be indirect discrimination against people who earned similar qualifications for such a role outside of the UK.
Indirect sex discrimination
If you were hiring for a vacant position and you included a minimum height requirement for the job, despite height not being relevant to carry out the job’s duties, you could be indirectly discriminating against women, given that women are typically shorter than men.
You could also be discriminating against certain ethnic groups in this case.
The Rare Times When Indirect Discrimination is Legal
The Equality Act 2010 does state that if you have a legitimate aim behind indirect discrimination, the discrimination can be justifiable.
The legitimate aim cannot be discriminatory, though. And it must be a genuine reason. And it must be “appropriate and necessary”. For example:
- For the health, safety, and welfare of individuals.
- To run an efficient service.
- For the requirements of a business.
So for example, the fire service requires applicants to complete various physical tests. On the face of it, this might seem like age discrimination, given that an older person is likely to be less physically capable than a younger person.
However, since the role of a firefighter is physically strenuous for the purposes of protecting the health, safety, and welfare of individuals, it is a legitimate aim.
The Difference Between Direct and Indirect Discrimination
We now know what indirect discrimination is. It’s when you treat someone the same as everyone else, but it has a negative effect on them.
Direct discrimination is when you treat someone differently and less favourably because of a protected characteristic. For example, not giving someone a promotion because of their race would be direct racial discrimination.
Our guide on direct discrimination will walk you through this better-known type of discrimination.
Talk to an Expert
Indirect discrimination is a serious matter.
An employee who suffers indirect discrimination might feel violated, shamed, and intimidated. Your business could lose thousands of pounds and find its reputation ruined.
For help regarding indirect discrimination, contact Croner’s employment law experts today on 0808 145 3378.
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