Indirect Discrimination in the Workplace

Your employees are protected from all forms of discrimination in the workplace under the Equality Act 2010. Discrimination claims against your business can result in costly employment tribunal claims that can cause damage to your business's reputation and financial bottom line. Most companies promote a zero-tolerance policy towards discrimination because of this. However, ensuring that no discriminatory treatment occurs in the workplace requires regular reviews of your policies, procedures, and rules.

As your business and workforce changes, aspects you never considered might materialise. In this article, we will clarify what indirect discrimination is, discuss how it occurs in practice, and how to avoid it. For further assistance on tackling indirect discrimination in the workplace, call our experienced HR advisors today on 01455 858 132.

• Indirect Discrimination in the Workplace
• What does indirect discrimination mean?
• How can indirect discrimination occur in the workplace?
• How to avoid indirectly discriminating against employees
• Difference between direct and indirect discrimination
• Examples of direct and indirect discrimination occur in the workplace
• Types of indirect discrimination
• How can an employee experience examples of indirect discrimination in the workplace?
• Get advice from our HR team

For many employers it may seem that the obvious way to address all forms of discrimination is to enforce the equal treatment of all employees. However, by doing so you may run the risk of placing somebody in a disadvantaged position through indirect discrimination.

What does indirect discrimination mean?  

By definition, indirect discrimination is inadvertently placing an employee at a disadvantage, because of a protected characteristic. This can be in both informal and formal settings, and includes working conditions, provisions, and qualifications.

How can indirect discrimination occur in the workplace?

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

Some more common examples may be:

• Requiring full-time workers only as this could be considered indirect discrimination against women (sex) as they are more likely to work part-time.
• Having a no hats, headgear, or head coverings uniform policy as this could indirectly discriminate against a religion/belief.
• Requiring employees to be a certain height indirect discrimination against women (sex) as less likely to achieve the requirement.

An example of indirect discrimination can be found in a 2018 employment tribunal case, where an employee with ulcerative colitis required easy access to the toilet due to their condition. Stress appeared to be a factor in aggravating her symptoms.

In response, 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. Instead, she needed to park on a first come, first served basis. If she parked in an undesignated spot, to be closer to the toilet, she would incur a sanction. Whilst the employer told her they would not sanction her, the stress of the situation exacerbated her symptoms.

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. In simple terms it means an individual is treated poorly, or a group of people are treated unfavourably because of one of nine protected characteristics as laid out in the Equality Act.

When employees are indirectly discriminated against in a work setting, they face disadvantages from the blanket application of policy, which make them unfair company policies. Ironically, these are usually put in place to ensure fairness.

Examples of direct and indirect discrimination occur in the workplace

We will demonstrate instances of direct discrimination with real-life and hypothetical examples:    

• An employer directly discriminates against younger people if they constantly skip them from promotion due to their age. 
• Direct discrimination can occur when choosing a high percentage of women for redundancy, compared to the gender distribution within the company.

When it comes to indirect discrimination examples, employers might not be as aware, which makes spotting them less easy:

A hypothetical example of indirect discrimination:

Could occur when an employee has recently had a diagnosis of ADHD.

Due to their neurodivergent condition, this staff member could benefit from short, regular breaks and swapping often between tasks to better help them focus. On days when they struggle in the busy office environment, they could fare better working flexibly including remotely.

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 characteristics these are outlined in the Equality Act 2010:

• Age.
• Disability (including mental health complications).
• Gender reassignment.
• Marriage and civil partnership.
• Pregnancy and maternity.
• Race.
• Religion and belief.
• Sex.
• Sexual orientation.

How can an employee experience examples of indirect discrimination in the workplace?

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

We can use some of these characteristics to explore further examples indirect discrimination at work across different types of UK workplaces and industries.

• Scenario: An employer imposes a dress code that prohibits head coverings. This could be considered to indirectly be discriminating against employees practicing certain religions, such as Sikhism or Islam.  
• Scenario: An employer is hosting a workplace event for employees that is fully catered. However, they haven't taken into consideration, the provision of vegetarian or vegan options. This could be considered indirect discrimination, not only on the grounds of belief, but additionally, on the grounds of religion (as some religions have strict dietary restrictions).
• Scenario: A company requires all its employees to work full time. This could inadvertently discriminate against young parents, particularly new mothers, this will likely be considered a form of indirect sex discrimination.

Indirect racial discrimination in the workplace

Examples of employees indirectly discriminated against due to their race or nationality might be easiest to spot. Unfortunately, a common example of this (that still occurs) are job adverts that specify the candidate must speak native English. This automatically puts individuals of different nationalities at a disadvantage, regardless of their ability to speak the language at the required professional level.

Requesting that only candidates with a specific 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 at a UK university are accepted.  

Indirect discrimination of religion and belief 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. Ethical vegans in your workforce might require further consideration when it comes to work events as their dietary restrictions need to be taken in to account.

Any action taken by an employer that prevents an individual from observing their religious duties by imposing one inflexible rule to all staff, could be considered a form of indirect discrimination against them. An example of this would be an employer requesting all staff members to work one full weekend a month. However, asking practicing Jewish people to work on Saturday will be in opposition to their religious practices. In this instance the organisation needs to show flexibility. The same goes for practicing Catholics or others of a Christian denomination, who attend mass on either Saturday evening or Sunday morning.

Get advice from our HR team

Many organisations risk indirectly discriminating against their employees without even realising it. By promoting a culture of openness and trust you will encourage your employees to approach and discuss them with you. This way, your business can avoid ending up with a discrimination claim on your hands.

Our experienced HR Advisory experts are on hand to help your business navigate the ever-changing landscape of HR and Employment Law. To learn more about direct and indirect discrimination get in touch with Croner experts on 01455 858 132.