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Employment Law Services Ltd

Indirect Discrimination

Indirect discrimination basically arises in the situation where an employer apparently treats all staff in the same way but the effect of that treatment has a detrimental effect on a particular type of group of staff which includes the individual that claims to have been discriminated against.



The standard legal definition is that indirect discrimination occurs when A (the employer) applies to B (the individual) a provision, criterion or practice which he/she applies or would apply equally to persons not of the same sex (race etc) but;

i. Which puts or would put persons of the same sex (race) as B at a particular disadvantage when compared to another to another person;

ii. Which pub B at that disadvantage; and

iii. Which A cannot show to be a proportionate means of achieving a legitimate aim.



Therefore part iii. Above provides the employer (A) with a possible means of defending the claim.



Indirect discrimination is therefore unlike direct discrimination, and harassment, a form of discrimination to which an employer can defend where the alleged discrimination is “justified”. This applies to racial, sexual, age, belief, and sexual orientation discrimination.



The terms “provision, criterion, or practice” are interpreted in a broad manner. So, “provision” will include both contractual and non-contractual provisions, for example staff policies and procedures.



“Criterion” most often applies to situations where some form of selection is involved, such as in appointments, promotions, or dismissal. Therefore employers need to examine the skill and person specifications when drawing up new job descriptions. Similarly employers need to examine the criteria they use in a redundancy selection.



“Practice” again has a very wide meaning, addressing set policies or procedures, the actual normal daily customs and general workings and traditions in a person’s workplace.  In practice it is up to the individual pursuing the claim to identify the relevant groups to compare the effect of the treatment on them, i.e. selecting the right “pool” for comparison. This can often prove difficult.



There is very little guidance from the courts in considering what level of disparity between the groups being compared, or difference, amounts to potential indirect discrimination.



Some individuals may allege that a particular policy or procedure is discriminatory, but unless it actually puts the individual personally at a disadvantage they will not be able to proceed with a claim of indirect discrimination. 

The Supreme Court has resolved a number of aspects of the law on indirect discrimination in the judgment in the cases of Essop and others v Home Office (UK Border Agency), and Naeem v Secretary of State for Justice. In the judgment the Supreme Court essentially concluded that it was not necessary for a claimant to show the reason why a particular provision, criterion, or practice causes individuals with their protected characteristic (ie the particular gender, racial origin, sexual orientation, etc) particular disadvantage. The judgment established the following points:-

- None of the various definitions of indirect discrimination includes any express requirement for an explanation of the reasons why a particular PCP puts one group at a particular disadvantage when compared with others.

- Direct discrimination expressly requires a causal link between the characteristic and the less favourable treatment; indirect discrimination only requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual.

- The reasons why one group may find it harder to comply with the PCP than others are many and various, and need not be unlawful or under the control of the employer.

- There is no requirement that the PCP place all members of the group at a disadvantage.

- It is commonplace for the disparate impact to be established on the basis of statistical evidence, which can show only correlation, not a causal link (or indeed the reason why).

- It is always open to an employer to justify a PCP that disadvantages a particular group. 

 

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