What Is Indirect Discrimination at Work and How Do You Prove It?

Indirect discrimination under the Equality Act 2010 is often harder to identify than direct discrimination because it does not involve being treated differently on the face of it. Instead, it occurs when a provision, criterion, or practice that applies equally to everyone puts people with a particular protected characteristic at a particular disadvantage, and the employer cannot justify it.

What Is a Provision, Criterion, or Practice?

A provision, criterion, or practice is any rule, requirement, or way of doing things that an employer applies or would apply. It can be a formal written policy, an informal working practice, or a one-off decision. Examples include requiring all staff to work full-time, which may indirectly discriminate against women who have childcare responsibilities, requiring staff to be available at short notice, which may disadvantage those with disabilities, and requiring a particular qualification that is harder to obtain for people of certain nationalities.

What Is Particular Disadvantage?

Particular disadvantage means that people sharing the protected characteristic are put at a greater disadvantage than those who do not share it. This does not need to affect every person with that characteristic, but the disadvantage must be real and significant. Statistical evidence showing that the provision affects a higher proportion of one group than another can be powerful evidence of particular disadvantage.

Can the Employer Justify It?

Unlike direct discrimination, indirect discrimination can be justified if the employer can show that the provision, criterion, or practice is a proportionate means of achieving a legitimate aim. The burden shifts to the employer to establish justification once the claimant has shown that the provision puts people with their characteristic at a particular disadvantage. The employer must show both that the aim is legitimate and that the measure chosen is proportionate, meaning it is appropriate and necessary.

What Evidence Do You Need?

Evidence of the provision, criterion, or practice applied by the employer, evidence showing that it puts people with your characteristic at a particular disadvantage compared to those without it, and evidence that you personally have suffered that disadvantage are all needed. Statistical data, witness evidence from affected colleagues, and the employer's own data can all be relevant.

Summary

Indirect discrimination occurs when a neutral employer practice puts people with a protected characteristic at a particular disadvantage without justification. The claimant must show the provision, the group disadvantage, and their personal disadvantage. The employer can justify the practice if it is a proportionate means of achieving a legitimate aim. An employment law barrister can advise on the strength of your claim and help you identify and gather the most relevant evidence.

If you're thinking about getting some early advice from a Barrister on the merits of your case, our team can help you with a quote. Get in touch with us today.