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Indirect discrimination
[ch 7: pages 211-214]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 seek 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 of the EA 10. The test is notoriously complicated. A person (such as an employer) indirectly discriminates against an individual if they apply to that individual a “provision, criterion or practice” (often abbreviated as a PCP) that is discriminatory in relation to that individual’s protected characteristic. The PCP will discriminate against that individual if it is applied to a group who all share the protected characteristic (including the individual) and also to others without the protected characteristic, and if it puts those with the protected characteristic at a disadvantage when compared with those without.
The employer has a defence if they can show that the PCP is a “proportionate means of achieving a legitimate aim”.
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
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. Typical examples might 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 its existence puts him or her at a disadvantage. For example:
The ambulance service practised a policy known as hot-desking which required call centre staff to work at any desk station that was free at the start of each shift. The employer did not impose this practice on the claimant, Mr Roberts, because he suffered from social anxiety disorder, which meant that he struggled to cope with a different desk each day. Nevertheless, he was adversely affected by the policy even though it was not applied to him directly, because the requirement for everyone else to hot-desk made it impossible for a desk to be reserved for him. As a result, the hot-desking was a PCP that the ambulance service was required to justify.
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.
In Braithwaite v HCL Insurance BPO Services Limited [2015] UKEAT/0152/14, the EAT confirmed that requiring employees to sign up to new worse contract terms or else lose their jobs is a PCP that an employer must justify where it adversely affects groups with a protected characteristic.
Must you demonstrate disadvantage to a particular group of workers apart from just you?
Usually, although not always. In Eweida and Others v The United Kingdom [2013] IRLR 231, the European Court of Human Rights (ECHR) ruled that a British Airways check-in operative who was not allowed to wear a visible crucifix at work, could claim indirect religious discrimination against her employer even though she was the only BA employee affected.
In a surprising ruling, Essop and others v Home Office (UK Border Agency) [2015] EWCA Civ 609, the Court of Appeal has held that to succeed in an indirect discrimination claim, the claimant must also show why the PCP disadvantaged both the group and the individual claimant. Permission has been given to appeal against this ruling in the Supreme Court.
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.
Must you prove genuine disadvantage to you as a result of the PCP?
Yes. For example, if Mr Homer (see page 211) 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 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 (Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15).
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 persuasive evidence not only that the aim is legitimate, but also that it is a proportionate (i.e. appropriate and reasonable) 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 results from consultation with the workforce or negotiation with a trade union (Loxley v BAE Systems (Munitions & Ordinance) Limited [2008] ICR 1348). The tribunal must conduct a balancing exercise, weighing the interests of those who are disadvantaged against the employer’s need to achieve the aim.
On its own, the need for good industrial relations cannot justify indirect discrimination (Kenny v Ministry of Justice [2012] EUECJ C-427/11).
It is not the law that a policy can never be justified if a less discriminatory alternative is available. Even so, the existence of feasible alternatives is an important part of deciding whether a chosen policy was proportionate (Kapenova v Department of Health [2013] UKEAT 0142/13/1404). Tribunals are not supposed to speculate without justification about alternative possibilities the employer might have explored (Chief Constable of West Midlands Police & Ors v Harrod & Ors [2015] UKEAT/0189/14/DA).
It is legitimate for a business to make its own decisions about allocating resources (HM Land Registry v Benson [2011] UKEAT 0197/11/1002), and to want to safeguard its future financial viability (Braithwaite v HCL BPO Insurance Services Limited [2015] UKEAT/0152/14/DM). However, cost alone cannot justify indirect discrimination (Woodcock v Cumbria PCT [2012] EWCA Civ 330). In other words, an employer is not allowed to justify a discriminatory decision, for example, to pay women less than men, just by pointing to the fact that there is less money in the pot. For example, in O’Brien v Ministry of Justice [2013] UKSC 6, the MOJ’s decision to deny part-time recorder judges a pension because this would leave less money to fund the pensions of full-time circuit judges was unlawful.