01 Dec 2020
Indirect discrimination happens when there is a policy that applies in the same way for everybody but disadvantages a group of people who share a protected characteristic.
If someone believes that you’ve done this, they can raise a grievance, or even take legal action.
Indirect discrimination often occurs when you mean well. You might think that having a zero-tolerance policy for discrimination protects you. Unfortunately, it’s not that simple. Everyone is different, and that means treating people 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. But 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. Why? 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 would be more likely to affect certain racial groups than others. There is precedent for this type of indirect discrimination case.
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
An example of this type of discrimination would be including a minimum height requirement for a job you were hiring for. If the job role requires the individual to be a certain height, this may be acceptable—more on that next. If not, then you could be indirectly discriminating against women. 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, necessary, and a proportionate means of achieving a legitimate aim”. 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 it is a legitimate aim. This is particularly important in roles where the safety and wellbeing of others are at risk.
The Difference Between Direct & Indirect Discrimination
We now know what indirect discrimination is. But what about direct discrimination?
This 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.
Do you have any questions?
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