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Indirect discrimination
[ch 7: pages 238-239]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” 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 institutional change.
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, all of whom share the protected characteristic), and also to others who do not have 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”. Tribunals must conduct a balancing exercise, weighing the employer’s legitimate business aims, to decide whether the less favourable treatment of those with a protected characteristic can be justified.
Each part of the test must be met in order 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 likely to have a claim for direct sex discrimination.
Here is a good example of the test for indirect discrimination operating in practice:
Mr Homer was a police legal adviser three years from retirement. His employer introduced a new grading structure. Under the new structure, only people 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 requiring 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 Homer’s protected characteristic (i.e. everyone approaching retirement doing his kind of job) when compared with younger workers. 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 employer’s approach to meeting that aim 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