I wonder who can claim indirect discrimination?

What is indirect discrimination?

Indirect discrimination is when a policy, criterion or practice (PCP) is applied to everyone equally, but disadvantages a group of people with a protected characteristic more than others who do not share that characteristic. The protected characteristics are age, sex, sexual orientation, religion and belief, race, pregnancy and maternity, gender reassignment, disability, and marriage and civil partnership.

A common example of indirect discrimination is the requirement for a role to be done full-time. This PCP may be indirectly discriminatory against women because women are more likely to need to work part-time to accommodate caring responsibilities. Another example may be a requirement to work on a Sunday. This PCP could be indirectly discriminatory against Christians, who treat Sunday as a holy day of rest.

A PCP will not be indirectly discriminatory if it can be objectively justified. This means that the PCP must achieve a real business need and must be proportionate.

Individuals who do not share the protected characteristic

A question then arises when an individual suffers the same disadvantage as a person with a protected characteristic, but they themselves do not share that protected characteristic. Can this person claim indirect discrimination? For example, what if a male employee requests part-time hours due to childcare responsibilities and his employer refuses? Because it is women who normally bear the childcare responsibilities, a male employee would not share the relevant protected characteristic of gender.  

The European case of CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (C-83/14) addressed this question. In this case, the European Court of Justice held that a claimant who does not share the protected characteristic of the disadvantaged group may still succeed in a claim for indirect discrimination as long as they can show they have suffered the same disadvantage. In January 2024 this decision was implemented into UK law with section 19A of the Equality Act 2010. To continue the example above, this means that a male employee who is denied the ability to work part-time to accommodate childcare commitments would be able to claim indirect discrimination despite the fact that he does not share the protected characteristic of the disadvantage group (i.e. women). Therefore in this situation, in order to deny the request without being discriminatory, an employer would need to show that the PCP of requiring a role to be done full-time is a proportionate means of achieving a legitimate business need.

Section 19A expands the number of claimants who could claim indirect discrimination. Employers must therefore take care when making decisions and implementing policies, and review how different employees may be affected. The reasons for setting a certain provision, criterion, or practice should be objectively justifiable and documented.

Job candidates

Employers should also remember that it is not just current or former staff can bring a claim for indirect discrimination; job applicants can as well. For example, requiring an individual to complete a written application form may be discriminatory against applicants with dyslexia as this is a disability which could make filling in the application more difficult. Requiring applicants to have a number of years’ experience may be discriminatory against younger candidates who are less likely to have the necessary experience. Employers may be at risk of a discrimination claim, unless they can show that such requirements are a proportionate means of achieving a legitimate aim. Employers should keep their recruitment policies under review and be willing to offer adjustments to applicants where required.

It can be difficult for employers to recognise where a provision, criterion or practice may be indirectly discriminatory. If you have concerns about any of the practices in your business, please get in touch. Our Employment Team can be reached by calling 023 8071 7717 or by emailing employment@warnergoodman.co.uk.