Indirect discrimination
Indirect discrimination

The following Employment guidance note provides comprehensive and up to date legal information covering:

  • Indirect discrimination
  • Apparently neutral treatment having discriminatory consequences
  • Identifying the PCP
  • PCP as cause of the particular disadvantage
  • Reluctant compliance with PCP
  • 'Particular' disadvantage
  • How many persons must be disadvantaged?
  • Choosing the correct pool
  • Claimant must show he suffered or would suffer the disadvantage
  • Justification—a proportionate means of achieving a legitimate aim
  • more

There is a clear difference between direct and indirect discrimination, and the two are mutually exclusive (although claims may of course be brought in the alternative):

  1. the law prohibiting direct discrimination aims to achieve formal equality of treatment: there must be no less favourable treatment between otherwise similarly situated people on grounds of a protected characteristic

  2. the law prohibiting indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular protected characteristic

The main difference between the two is that indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim; direct discrimination cannot be justified, except in the case of age.

For information on direct discrimination generally, see Practice Note: Direct discrimination.

In the context of the protected characteristic of sex, examples of indirect discrimination might include:

  1. an employer specifying that all workers must be at least 1.7 metres tall, which would disqualify more women than men and therefore be potentially indirectly discriminatory

  2. an employer requiring workers to work long and/or uncertain hours, which women might find particularly difficult to comply with because a far greater percentage of them than men are primary child carers

Apparently neutral treatment having discriminatory consequences

Section 19 of the Equality