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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 a written or unwritten workplace policy or house rule (the Equality Act calls it a provision, criterion or practice (PCP)) applies to everybody, but the PCP has the worst impact on you and other people in your workplace with a particular protected characteristic, and;

  • you are a person with that particular protected characteristic
  • you have been or would be disadvantaged by the PCP, and
  • it is not a proportionate means of achieving a legitimate aim.

If your employer does not change the decision or stop implementing the PCP then this would be indirect discrimination. Unlike direct discrimination, indirect discrimination can be justified if your employer can prove that the provision, criterion or practice (PCP) amounting to indirect discrimination was a proportionate means of achieving a legitimate aim.

The pool for comparison

The PCP applies to a certain group of people in the same way no matter who they are. Within this group, some people with a particular protected characteristic may be put at a particular disadvantage by the PCP.  The Employment statutory code of practice says that; “….. the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively.” 

Your employers defence for indirect discrimination

Your employer can defend indirect discrimination if they are able to prove that PCP is a “proportionate means of achieving a legitimate aim”. The courts carry out a balancing exercise between the employer’s need to use the PCP and the discrimination caused by the PCP. The Employment statutory code of practice says that the PCP should be legal, not discriminatory in itself and must represent a real, objective consideration to be regarded as a legitimate aim.

In London Underground v Edwards, No 2 [1998], Susan Edwards was a single parent with a young child employed as a train operator. Her roster was 8 am to 4 pm or from 8.30 am to 4.30 pm, with Saturday as a rest day. This allowed her to be at home in the mornings and evenings to take care of her son. London Underground announced a new flexible shift system, under which work began at 4.45 am and included Sundays. This was the PCP. The PCP made things difficult for Susan, as far as taking care of her son. Although she could change shifts to avoid early and late work, this would mean a longer shift for the same money. When negotiations between management and the unions about special arrangements for single parents failed, she resigned and claimed unlawful sex discrimination.

The tribunal agreed with her that she was disadvantaged because being a woman she had a particular protected characteristic (Sex). More men than women could work under that roster (PCP) because a greater number of women are primary carers. London Underground could not justify the PCP as a proportionate means of achieving a legitimate aim.

Shuter v Ford Motor Company Ltd [2013] 

Under Fords maternity leave policy, female employees are paid 100% of basic pay for up to one year. Male employees on the other hand, receive two weeks’ ordinary paternity leave at full basic pay, but additional paternity leave is paid only at the statutory minimum (the PCP). Mr Shuter was an engineer at Ford. He said he lost £18,000 during his five-month additional paternity leave period because of the PCP, and brought a sex discrimination claim against Ford.

Ford said the indirect sex discrimination was justified because it was a proportionate means of achieving a legitimate aim. Ford supplied evidence that the PCP was part of a long-term plan to recruit and retain more women, who are under-represented in its workforce. Ford provided the tribunal with proof of its reasoning for not enhancing additional paternity pay when additional paternity leave was introduced, as well as detailed statistical evidence supporting its case that it needed to increase female representation in its workforce. One of the ways for the company to do this was to offer female staff generous maternity pay. Ford’s workforce in the relevant part of the business was just 6.2% female in 1999 by 2013, it had risen to 8.9% because of the PCP.

Updated: 03/03/2020


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