Prohibited conduct ― indirect discrimination

Produced by Tolley in association with Emma Bartlett at Charles Russell Speechlys LLP
Prohibited conduct ― indirect discrimination

The following Employment Tax guidance note Produced by Tolley in association with Emma Bartlett at Charles Russell Speechlys LLP provides comprehensive and up to date tax information covering:

  • Prohibited conduct ― indirect discrimination
  • Persons who comply with a PCP may still be placed at a disadvantage
  • '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
  • Indirect sex discrimination - PCPs which are contractual terms
  • No indirect pregnancy and maternity discrimination

Indirect discrimination occurs where the employer treats all workers the same, but where some aspect of that uniform treatment affects one group of workers adversely when compared with another.

In order to determine whether indirect discrimination has taken place in the workplace, an employer should ask the following questions:

does the worker possess any one of the protected characteristics (other than pregnancy and maternity)?see the Protected characteristics guidance note
has an identifiable provision, criterion or practice (PCP) been applied to the worker?
has the same PCP been applied to other workers who do not possess the same protected characteristic?
does the PCP put, or would it put, a worker with the protected characteristic at a particular disadvantage when compared with workers who do not possess it?and
does the PCP put, or would it put, the individual worker at that disadvantage?and
can it be shown that the PCP is 'a proportionate means of achieving a legitimate aim'?

EqA 2010, s 19

PCPs include not only criteria that an employer imposes openly but also practices that are in fact applied without being written down or otherwise made official.

It must be the PCP which puts the complainant at a disadvantage, not some other factor which is self-inflicted. See Example 1.

Persons who comply with a PCP may still be placed at a disadvantage

The test for indirect discrimination does not require an inability on the part of the complainant to comply with a particular condition or requirement. Rather, it requires that the complainant is put, or would be put, at a 'particular disadvantage' by the application of the PCP (see Claimant must show he suffered or would suffer the disadvantage below for further information).

Under the current test, it is possible for:

  1. a person to be found to have been put at a particular disadvant

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