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Indirect discrimination
[ch 7: pages 218-220]Indirect discrimination takes place when a rule or practice appears to treat everyone equally, but instead puts particular workers with a protected characteristic at a disadvantage. Laws against indirect discrimination aim to combat “institutional” or “embedded” discrimination, where ostensibly neutral rules disadvantage particular groups of workers.
Claims for indirect discrimination are complex and difficult. Typically, a union might support this kind of claim if a positive outcome could benefit a large section of the workforce, or help support a wider campaign for change. One of the challenges in any claim for indirect discrimination is finding individuals willing to step forward and act as claimants.
Indirect discrimination is defined in section 19, EA 10. The test is notoriously complicated. An employer will indirectly discriminate against an individual when the employer applies a “provision, criterion or practice” (often abbreviated as a PCP) to that individual as a member of a group sharing the protected characteristic, and also to others without the protected characteristic, in circumstances where those with the protected characteristic are placed at a disadvantage, compared with those without.
The employer has a defence of objective justification if they can show that the PCP is a “proportionate means of achieving a legitimate aim”.
Each part of the test must be met to succeed in proving indirect discrimination. The protected characteristics are the same as those for direct discrimination, except that pregnancy and maternity are not included. In practice, a woman who has suffered indirect discrimination because of pregnancy or maternity is also likely to have a claim for direct discrimination (see page 207).
Here is a good example of the test for indirect discrimination operating in practice:
Mr Homer was a police legal adviser three years short of retirement. His employer introduced a new grading structure whereby only someone with a law degree could qualify for the top grade, which attracted enhanced pay. 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 this was indirect age discrimination. The requirement to have a degree was a “provision, criterion or practice”. It applied to everyone who wanted promotion to the top grade, and it disadvantaged a particular group of workers sharing Homer’s protected characteristic (age) when compared with younger workers. Homer himself was put at a disadvantage because he had neither a law degree nor enough time to get 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 employer’s approach may not have been proportionate, especially because the new policy failed to differentiate between existing employees (who did not need to be “recruited”) and prospective applicants. The Supreme Court sent the case back to the tribunal to decide whether the requirement for anyone to hold a law degree to access the top grade could be justified.
Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15
There is no definition of “provision, criterion or practice” in the EA 10. The phrase is very wide. It can cover any of the employer’s policies, procedures, contract terms or practices. Typical examples include rules about working hours, absence management procedures and so on. It does not matter whether a PCP is directly applied to a claimant, as long as it puts them at a disadvantage (Roberts v North West Ambulance Service [2012] UKEAT/0085/11). A PCP can be a policy already in place, or something the employer intends to introduce in the future.
A potential claimant must show that they have been disadvantaged by the PCP or the claim will fail. For example, if Mr Homer (see above) had not met the other criteria for promotion to the top grade, he would not have been disadvantaged by the need for a law degree, because he would have been ineligible for promotion even with a degree.
Not every member of the comparator group must be put at a disadvantage for a claim to succeed. For example, a performance review process can be indirectly race discriminatory if proportionately fewer black than white workers achieve the top grade, even if some black workers achieve it (Essop and others v Home Office (UK Border Agency) [2017] UKSC 2),
It is enough for workers sharing the protected characteristic to show that a PCP causes them disadvantage when compared with those without the characteristic. They do not need to show the reason for that disadvantage, that is, that it was due in some way to the protected characteristic (Essop and others v Home Office (UK Border Agency) [2017] UKSC 2).