Most business owners and managers are familiar with the concept of direct discrimination and know that they can’t treat protected groups less favourably than others because of the protected characteristic. But many are less familiar with the concept of indirect discrimination and how it might apply in their business. It’s important to understand indirect discrimination as it’s more likely to slip in through lack of thought and without negative intentions on the part of the business owner or manager, and place the organisation at risk.
So here are our answers to 10 common questions about indirect discrimination.
What is indirect discrimination?
Direct discrimination is where a person is treated less favourably because of a protected characteristic, such as sex, race or religion.
Indirect discrimination is a bit wider, and is where a “provision, criterion or practice” is applied which is discriminatory in relation to a person’s protected characteristic. It means the application of the provision, criterion or practice is disadvantageous to people with that protected characteristic as they are less likely to be able to comply with it.
Who do claimants have to compare to?
For indirect discrimination there needs to be a “pool” for comparison. So if for example you are applying a certain practice to a group of people, say a whole department, then the pool would be everyone within that department who is affected by the practice.
How is the comparison made?
Once a pool has been identified, an assessment needs to be made about whether those with the protected characteristic are disadvantaged as compared to those without the characteristic. The individual or individuals bringing the claim also need to demonstrate that they personally are adversely affected.
Does the practice or criterion need to have already been applied?
No, it can be something that is planned also. So if you intend to apply a practice and it would put a particular group at a disadvantage, they don’t have to wait until it actually happens to make a complaint.
What if I don’t have any staff with the protected characteristic within the group affected?
Even if a practice would be discriminatory to a certain group, if you don’t have any workers from within that group who are or would be affected, there can be no claim, as there needs to be at least one claimant being disadvantaged.
Of course that doesn’t mean implementing something which would be indirectly discriminatory is a good idea – clearly it is not good practice and as your workforce is never a permanent thing, something which can’t give rise to a claim at the beginning could do later if either existing staff become part of a protected group or you recruit workers who are.
Does it only apply to employees?
Not at all – as with direct discrimination, the pool for protection is wider, and includes (for example) candidates in a recruitment campaign. In fact recruitment is an area in which indirect discrimination can easily creep in.
What are some examples of indirect discrimination against employees?
Women are more likely to have childcaring responsibilities therefore there is a possibility that changes to working hours, restrictions on holidays or working times which may make family responsibilities more difficult to combine with work would be discriminatory against women.
Any kind of blanket rule or practice of refusing flexible working requests/requiring staff to work full time may well be indirectly discriminatory for the same reason.
Using “last in first out” as a redundancy selection criteria – this is more likely to negatively impact younger workers.
What about during recruitment?
Recruitment is a risky process for indirect discrimination – you do not have actual workers there with protected characteristics prompting you to consider the impact of what you are doing.
Imposing time-constrained requirements on recruitment/promotion opportunities, such as a certain number of years’ experience could be indirectly discriminatory, as older workers are more likely to have achieved that requirement.
Imposing an unnecessary requirement to hold a degree or similar academic qualification may be indirectly discriminatory as younger applicants are more likely to meet this requirement.
A requirement to hold a driving licence may be indirectly discriminatory against disabled candidates.
How do I protect my business against indirect discrimination claims from employees?
Think first. If you are considering applying a practice, criterion or provision in your workplace, such as a change to working hours requirements or similar, consider beforehand whether doing so might have a disproportionately negative impact on people with a protected characteristic. Consider then whether the practice is genuinely necessary for business reasons and whether any adaptations can be made to reduce the risk.
Avoid imposing blanket rules on flexible working, and follow the requirement to genuinely consider every application on an individual basis. It’s fine to refuse a flexible working request if you are genuinely not able to accommodate it for good business reasons, but not properly considering requests, or making it known that requests are discouraged/likely to be refused is where you become vulnerable.
How do I avoid claims when recruiting?
When setting criteria for recruitment campaigns, don’t be lazy. It can be tempting to try and reduce what could be a large pool of candidates by imposing length of service requirements or high academic requirements, but both of these could make you vulnerable legally. Instead consider carefully what you actually genuinely need from candidates. If you think you need a certain number of years’ service, or a certain level of qualification, or a driving licence what actually is it you think candidates with those things will have that candidates without them will not?
It may be a certain level of knowledge about a subject, skills to research analyse and present or write about something, or experience of a wider variety of scenarios, or a certain level of seniority, or the ability to travel around a local area. Once you’ve identified what it is you actually need, ask for that and don’t assume it will have been achieved in a certain way, or within a certain timeframe.
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