Indirect discrimination

What is indirect discrimination

The definition of indirect discrimination is contained in s.19 of the Equality Act 2010. Indirect discrimination occurs if:

“A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a protected characteristic of B’s”

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What is a provision, criterion or practice (PCP)?

We’ll take a look at each of these in turn.

A provision is a requirement or condition that your employer is applying to the whole or a part of the workforce. The requirement could be, for example, that all workers must work overtime on the weekend (which could potentially disadvantage those workers with children) or that all part-timers should be dismissed first in a redundancy situation.

A criterion is a test, principle, rule or standard. It is a less stringent standard than a provision.

A practice is, really, what it says on the tin. It is a workplace practice which is either formal or informal. The practice could be, for example, that a certain type of work is conventionally forwarded to a certain department or that a certain department doesn’t employ women.

It is important to identify the particular PCP that forms the basis of your case – failure to do so may be the difference between winning or losing your case. Further, you shouldn’t take a scattergun approach and just identify something that is disadvantaging you in the workplace as a “PCP” – you must identify whether it is a provision, criterion or practice.

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What does “discriminatory” mean?

“Discriminatory” within the context of indirect discrimination means that the PCP is applied to persons with whom you do not share your protected characteristic (i.e. race), puts persons with whom you share your protected characteristic at a particular disadvantage as compared to those with whom you do not share your protected characteristic, and puts, or would put you at a disadvantage.

However, unlike most claims for direct discrimination there is a general defence to a claim of age discrimination, which is that the PCP applied was a proportional means of achieving a legitimate aim.

An example of a discriminatory action by an employer would be the requirement that employees must not leave the workplace during the day. This could put those of a certain faith (such as Islam) at a disadvantage as they may wish to pray at the mosque on a Friday. Whether the employer could justify the PCP would depend upon whether their objective in implementing the requirement was proportionate and legitimate. This would depend upon the particular facts of the matter.

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What is a protected characteristic?

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How do I prove indirect discrimination?

Two words: statistical evidence. The wider definition of indirect discrimination in the Equality Act 2010 means that other forms of evidence may be appropriate (such as expert evidence) but generally you should seek out and utilise statistics that relate to the group (or “pool”) that you are claiming is being disadvantaged (and that you are a member of).

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Even if I succeed in showing that the PCP is discriminatory, will my employer be able to justify the application of the PCP?

This obviously depends on the facts of the particular matter. You should seek to show the extent of the discrimination – the greater the discriminatory effect of the PCP that’s being imposed, the less likely your employer will be able to justify said PCP. Further, it is always a good idea to brainstorm to try and come up with ideas for alternatives that your employer could have used which would have been less discriminatory.

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