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Indirect discrimination


In disability discrimination claims, employers have a duty to make reasonable adjustments if the disabled person has been put at a substantial disadvantage by a ‘provision, criterion or practice’ (PCP) imposed by the employer compared to someone who is not disabled [section 20 Equality Act 2010]. A PCP also forms part of the definition of indirect discrimination [section 19 Equality Act 2010].

In Ishola v Transport for London [2020], the question for the Court of Appeal was whether a PCP can be a one-off act, or if it had to be continuing acts….Read more

[see How to prepare a Scott Schedule for a direct discrimination claim, How to prepare a Scott Schedule for a victimisation claim, How to prepare a Scott Schedule for a harassment claim, How to prepare a Scott Schedule for a sexual harassment claim, How to ask questions about discrimination at work, How to write a grievance about discrimination]

What is Indirect Discrimination?

Indirect discrimination is when your employer applies a provision, criterion or practice (PCP) to everyone at work in the same way, but it puts people with a particular protected characteristic at a particular disadvantage [section 19 Equality Act 2010 (EQA 2010)]. It applies to all the protected characteristics except pregnancy and maternity.  Your employer has a defence if they can show that the PCP is a proportionate means of achieving a legitimate aim.

In your claim for indirect discrimination, you are telling the Employment Tribunal that there is an apparently non-discriminatory PCP which applies equally to everyone at work. However, there is a group of people with a protected characteristic who are particularly disadvantaged by the PCP as compared to a group of people without that specific protected characteristic.  You belong to the disadvantaged group of people with the protected characteristic, and you are also personally particularly disadvantaged by that PCP.

See EHRC Employment Statutory Code of Practice Chapter 4

PCP – Provision, Criterion or Practice

There is no definition of provision, criterion or practice in EQA 2010. A PCP can be in an HR Policy, staff handbook, memos, your employment contract, a letter from your employer etc. Any type of rule or instruction set by your employer can be a PCP.  It can also be unwritten such as custom and practice at work [Ishola v Transport for London [2020]]. It does not need to be a formal policy [British Airways plc v Starmer [2005].  It must apply to everyone and be non-discriminatory at first blush. You MUST define the PCP correctly. If you don’t your claim will fail.

See EHRC Code of Practice paragraph 4.5 – 4.8

Particular Disadvantage

There is no definition of particular disadvantage in EQA 2010, however the Supreme Court says that the words “disadvantage”, “detriment” and “unfavourably” in EQA 2010 mean the same thing. It is about what is reasonably seen as unfavourable by the person affected [Williams v Trustees of Swansea University Pension and Assurance Scheme [2018].

Under  section 19(2)(b) EQA 2010 you must show;

  1. that the PCP disadvantages a group.
  2. that the PCP disadvantages you personally as a member of the group.

See EHRC Statutory Code para 4.9-4.14

The Comparator Group

Under section 19(2)(a) EQA 2010 you must show the Employment Tribunal that the PCP applies or would apply equally to people at work who do not share your protected  characteristic. This is the comparator group identified as Group 1 in the illustration. Section 19(2)(b) EQA 2010 requires that the PCP in question, puts or would put persons with whom you share the protected characteristic at a particular disadvantage compared with persons with whom you do not share it.

It is the job of the Employment Tribunal to create Group 1, but you have to give them enough information for them to do so.  Section 19(2)(a) EQA 2010 allows the creation of a hypothetical comparator just as in direct discrimination [British Airways plc v Starmer [2005]].

All employees affected by the PCP in question should be considered. Then a comparison can be made between the impact of the PCP on the group with the relevant protected characteristic and its impact upon the group without it.

indirect discrimination

To better understand indirect discrimination think of three groups as in the illustration above. The first group (in blue) encompasses everyone that the PCP applies to, that is everyone at work. Group 1 is the group that does not have your protected characteristic and Group 2 is the group with whom you share a protected characteristic. Using an example of a woman claiming indirect sex discrimination. The PCP applies to everyone at work. Group 1 encompasses men. They do not have her protected characteristic of being female. Group 2 is women who are particularly disadvantaged by the PCP.

Using an example from the EHRC Statutory Code;

Ali, a Muslim man who works for a small manufacturing company wishes to undertake the Hajj. Hajj is the annual pilgrimage made by Muslims to the holy city of Mecca in Saudi Arabia, in the Middle East. Ali’s employer only allows their staff to take annual leave during designated shutdown periods in August to December. This means that Ali cannot attend the Hajj. Ali believes he has been subjected to indirect religious discrimination.

Here, the PCP is the rule that staff can only take their holidays during August and December. It applies equally to everyone and is apparently non-discriminatory. Ali’s protected characteristic is his religion. Group 1 is made up of staff on the same grade and pay as Ali who are not Muslim. Group 1 is your pool for comparison. Group 2 is made up of Muslim men at that workplace who all share the protected characteristic of religion with Ali. The PCP particularly disadvantages members of Group 2 on grounds of their religion as compared to members of Group 1. Ali is a member of Group 2 and personally suffers that disadvantage. This is the picture you need to draw for the Employment Tribunal in your Grounds of Complaint.

You must show the Employment Tribunal that there is a connection between the PCP and the disadvantage suffered by the group (hypothetical or actual) and you personally as a member of that group [Essop & ors v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017]].

See EHRC Employment Statutory Code paragraphs 4.15 – 4.22

Time Limits

In discrimination, the time limit for filing your claim rans from the date of the discriminatory act. In indirect discrimination, the discriminatory act is the application of the PCP to you. You must try and identify the date that the PCP was applied so that you can calculate the limitation date. If the PCP is an ongoing policy or practice then you can say that it is part of a continuing act of discrimination.

See Time Limits in the Employment Tribunal

Your Employer’s defence

Achieving a Legitimate Aim

If your employer is able to show the tribunal that applying the PCP is a proportionate means of achieving a legitimate aim, then your claim will fail even if you have suffered particular disadvantage. It is important to show the Employment Tribunal that there were other things that your employer could have done to achieve their aim, that would not have caused you disadvantage.

See EHRC Employment Statutory Code paragraphs 4.25 – 4.32

Not Intentional

If the Employment Tribunal finds that your employer did not intend to discriminate when applying the PCP, it must not make an award of compensation unless it first considers whether to make any other order such as an injunction, recommendation or declaration. Indirect discrimination will be intentional where the your employer knew that certain consequences would follow from their actions and they wanted those consequences to follow [Sections 119(5) & (6), 124(4) & (5) EQA 2010].  For this reason, if you have previously made a complaint or raised a grievance about the adverse impact of the PCP, you must certainly mention it to the Employment Tribunal.

See EHRC Employment Statutory Code paragraphs 4.24 & 15.44

Writing your claim – all about the PCP

Under section 136 EQA 2010 (the burden of proof), you must provide solid evidence from which the Employment Tribunal can conclude, in the absence of any other explanation, that your employer has indirectly discriminated against you. Once you have done this, the Employment Tribunal must uphold your claim unless your employer can show that the indirect discrimination was a proportionate means of achieving a legitimate aim.

You have to meet ALL of the four conditions in section 19(2) EQA 2010 to be successful in your claim. The fourth condition is for your employer to prove, but you must prepare to debunk it. Debunking it is a condition that YOU must meet.

  1. Show that you have a protected characteristic.
  2. Identify the PCP or PCPs. The Employment Tribunal may ask that you specify whether it is a “provision”, “criterion” or “practice” that you are complaining about. You can see that the three words are different and in some circumstances you may not be able to lump everything together as a PCP. You may need to specify which one, i.e. is it a provision a criterion or a practice. As an example, if you are complaining about a single decision which your employer did not repeat you might want to call it a provision or a criterion. Something that is repeated is obviously a practice. Although you can tag them all as PCP’s, be prepared for the employment tribunal to ask which one you mean.
  3. Show that the PCP applies to Group 1.
  4. Show that the PCP applies to Group 2.
  5. Show that the PCP puts Group 2 at a particular disadvantage when compared with Group 1. You can show actual disadvantage and potential disadvantage.
  6. Show that the PCP puts you personally at a particular disadvantage and identify the date when the PCP was applied to you, this is important for time limits. You can show actual disadvantage and potential disadvantage.
  7. Show that your employer could have used other less adverse means to achieve their aims which would have had less or no adverse impact on you and Group 2. This helps to fight any argument that the PCP was a proportionate means of achieving a legitimate aim.
  8. Show that your employer continued with the PCP even after you had informed them of the adverse impact on you (it really helps if you have made a complaint or raised a  grievance about it previously). This helps to fight any argument that they did not do it intentionally.

Updated: 07/07/2021


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