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Indirect discrimination
The legal test
Indirect discrimination is defined in section 19 of the EA 10. This says that a person (A) indirectly discriminates against another (B) if A applies to B a provision, criterion or practice that is discriminatory in relation to B’s relevant protected characteristic. A provision, criterion or practice (often abbreviated as a PCP), discriminates against B if:
• A applies or would apply the PCP to others who do not have the protected characteristic;
• The PCP puts people who share B’s protected characteristic at a disadvantage when compared with others who do not share the protected characteristic;
• The PCP puts or would put B at a disadvantage; and
• A cannot show that the PCP is a proportionate means of achieving a legitimate aim.
Each part of this test must be met in order to prove indirect discrimination. The protected characteristics for the purposes of indirect discrimination are the same as those for direct discrimination except that pregnancy and maternity are not included. Any woman who has suffered indirect discrimination because of pregnancy or maternity is likely to have a claim for indirect sex discrimination.
The law against indirect discrimination targets group or statistical disadvantage, where apparently equal treatment of all groups has a disproportionately negative impact on one group, to which the claimant belongs. The basic aim of the law here is to attack stereotypically held views which disadvantage particular groups of workers in the workplace.
Here is a good example of the test for indirect discrimination in practice:
Mr Homer was a police legal adviser, three years from retirement. His employer introduced a new grading structure. Only people with a law degree could qualify for the top grade, which attracted enhanced pay. Mr Homer did not have a law degree and there was not enough time left for him to complete one before he retired. He met all the other criteria for the top grade.
The Supreme Court confirmed that requiring Mr Homer to hold a law degree was indirect age discrimination. The requirement for a law degree was a “provision, criterion or practice”. It applied to everyone who wanted promotion to top grade, and it disadvantaged a particular group of workers sharing Mr Homer’s protected characteristic (i.e. everyone approaching retirement doing his kind of job) when compared with younger workers. Mr Homer was put at a particular disadvantage, because he didn’t have a law degree, or enough time to earn one.
As Mr Homer suffered indirect discrimination, it fell to his employer to show that the discrimination could be justified as a proportionate means of achieving a legitimate aim. The policy certainly had the legitimate aim of recruiting and retaining qualified staff, but the response may not have been proportionate, especially because it failed to differentiate between existing incumbents (who did not need to be “recruited”, as they were already in the job) and prospective applicants. The Supreme Court sent the case back to the tribunal to decide whether the employer was justified in requiring all staff to hold a law degree so as to access the top grade under the new promotion structure.
Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15
What is a provision, criterion or practice (PCP)?
There is no definition in the EA 10 and the phrase is very wide. It could refer to any of the employer’s policies, procedures, contract terms or practices. For example, hot-desking, i.e. expecting staff to work at any available desk, is a PCP (Roberts v North West Ambulance Service [2012] UKEAT/0085/11). A PCP could be a policy already in place, or something the employer intends to introduce.
Must you show disadvantage to a particular group of workers apart from just you?
Yes. Failure to do this will be fatal to the claim.
Does it matter that you could have complied with the PCP if you wanted to?
No. For example, in G v the Head Teacher and Governors of St Gregory’s Catholic Science College ([2011] EWCH 1452), a case involving school admissions, the refusal to admit a child with a “cornrows” style of haircut was indirect discrimination on grounds of race. It made no difference that the boy could have complied with the PCP by changing his hairstyle to meet the requirements of the school policy.
Must you prove genuine disadvantage to you as a result of the PCP?
Yes. For example, if Mr Homer had not met the other criteria for promotion to the top grade, he could not have shown that he was disadvantaged by the need for a law degree, because he would not have been eligible for the promotion even with a degree (Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15).
Must there be a comparator group?
Yes. You can only succeed with a claim for indirect discrimination if you can point to a group who are the same as you in all other material respects, but who are not disadvantaged by the practice. For example, in Mr Homer’s case, the comparator group would have been his colleagues who were not approaching retirement and who had enough time to obtain a law degree and secure the promotion.
Is there a defence to a claim for indirect discrimination?
Yes. A claim for indirect discrimination can be defeated if the employer can prove that the provision, criterion or practice (PCP) is a proportionate means of achieving a legitimate aim. There is no definition of “legitimate aim” in the EA 10, because each case depends on its own facts. However, a tribunal will expect an employer to be able to produce good persuasive evidence not only that the aim is legitimate, but also that it is a proportionate (i.e. appropriate) way of responding to the problem.
A tribunal will usually expect to see what other options were considered and why they were discarded, and will expect the policy to go no further than necessary to achieve the aim. A PCP is more likely to be considered proportionate if it is the result of consultation with the workforce (see, for example, HM Land Registry v Benson [2011] UKEAT/0197/11, discussed in Chapter 11). The tribunal conducts a balancing exercise, weighing the interests of those who are disadvantaged against the employer’s need to achieve the aim.
Under current law, financial considerations alone are not enough to demonstrate the existence of a legitimate aim (Woodcock v Cumbria PCT [2012] EWCA Civ 330).
On its own, the need for good industrial relations cannot be used to justify indirect discrimination (Kenny v Ministry of Justice, ECJ C-427/11). Often, complicated statistical evidence is needed to succeed in a claim for indirect discrimination. This kind of case is very expensive and is usually pursued in order to establish a point of wider importance, beyond that of the individual litigant.