Indirect discrimination
Published by a LexisPSL Employment expert

The following Employment practice 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
  • Associative indirect discrimination
  • Employment tribunal rules EqA 2010 must be read as prohibiting associative indirect discrimination
  • Reluctant compliance with PCP
  • 'Particular' disadvantage
  • How many persons must be disadvantaged?
  • Choosing the correct pool
  • More...

Indirect discrimination

This Practice Note considers unlawful indirect discrimination under Equality Act 2010 (EqA 2010).

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

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