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Indirect discrimination
[ch 6: pages 166-167]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;
• 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. However, a woman who has suffered indirect discrimination because of pregnancy or maternity is likely to have a claim for direct sex discrimination.
The law against indirect discrimination targets group or statistical disadvantage, where apparently equal treatment of all has a disproportionately negative impact on one group of workers, to which the claimant belongs. The basic aim is to attack stereotypically held views that disadvantage particular sections of 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.
The next question was whether the discrimination could be justified as a proportionate means of achieving a legitimate aim. The policy had the legitimate aim of recruiting and retaining qualified staff, but the response may not have been proportionate, especially because the new policy, requiring everyone in the highest band to have a law degree, 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 requirement for all staff to hold a law degree so as to access the top grade under the new promotion structure could be justified.
Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15