Prohibited conduct ― indirect discrimination

By Tolley in association with Emma Bartlett at Charles Russell Speechlys LLP

The following Employment Tax guidance note 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

Note: the legislative and case references in this guidance note are all subscription sensitive).

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?

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