Paul Burton, head of Frettens’ specialist employment & HR law team, provides an overview of indirect discrimination in the workplace, explaining what indirect discrimination is and what employers and HR managers need to know about it.
Indirect discrimination claims: A recap
My colleague Chris’ recent article on Covid vaccinations raised the topic of the risk of indirect discrimination claims. In that piece he said that a claim relating to a policy requiring staff to be vaccinated would potentially give rise to these sorts of claims.
Indirect discrimination claims are difficult, both to run as a claimant, but also to defend from the employer’s point of view because they rely on several features to satisfy them and there are multiple hoops to both jump through and seek to resist.
What is the definition of indirect discrimination?
The claim exists under section 19 of the Equality Act 2010 which says that it is discriminatory to have a ‘provision, criterion or practice’ which is discriminatory’ which puts a person with a protected characteristic at a disadvantage and, importantly, cannot be shown to be a proportionate means of achieving a legitimate aim.
Examples of indirect discrimination in the workplace
The first example given in the explanatory note to the Act is perhaps the slightly outdated one of a rigid requirement for shift working hours being disadvantageous to women due to childcare requirements.
It is clear why this route is sometimes difficult for a claimant as they must show firstly that they have the protected characteristic (easier in some cases than others) and then establish not only that there is a policy in place but also that the policy is or is likely to place them at a disadvantage.
To read a more in depth overview of what indirect discrimination is, please click here.
What is a ‘PCP’?
A PCP is a provision criterion or practice
We refer to the ‘PCP’ in indirect discrimination cases: the provision, criterion or practice which is equally applicable to everyone on the face of it. In our previous article, this would be the requirement that every member of staff have the Covid vaccine.
Usually, this will be some kind of policy (official or otherwise) which a business imposes. It can, however, be an unauthorised practice by a particular manager or even a custom which has evolved with time, even though it is not formalised.
The classic examples often relate to working time requirements or criteria for promotion or recruitment. It can include one-off events although generally a feature of a PCP is repetition.
What is a ‘disadvantage’?
The definition of disadvantage in employment law
Disadvantage here generally takes the same meaning as a detriment elsewhere in the Act.
An individual will need to show that people with their particular protected characteristic suffer more adversely than those without. This means they need to identify a pool of those suffering as against the comparator of someone without that characteristic.
To read the full article, please click here.