Indirect discrimination

If you read our article on the types of discrimination, then you’ll be aware that indirect discrimination involves the general application of business practices, policies, or rules that put people with protected characteristics at a disadvantage.

Simply put, indirect discrimination is when you treat an employee the same as everybody else, but it has a negative effect on them.

If you require immediate assistance with indirect discrimination, our 24/7 employment law advice line is available.

Now, we’ll delve deeper into indirect discrimination, using examples from a workplace setting, and highlighting the ways you can safeguard your workforce.

Your legal obligation to address indirect discrimination

Section 19 of the Equality Act 2010 defines the meaning of indirect discrimination. It specifies that an act of indirect discrimination occurs when a practice, policy, or rule is applied to everyone but puts those with a different protected characteristic at a disadvantage that cannot be reasonably justified.

Indirect discrimination is often less obvious than the direct form and might not be the decision maker’s intention. However, it is bound to have negative consequences, both for those who are discriminated against and the wider organisation.

It may well have a damaging impact on morale and engagement, in turn reducing the sense of commitment and increasing employee turnover.

A finding of indirect discrimination might also result in severe penalties and reputational damage for the company. So, you must understand how to prevent indirect discrimination in your workplace.

How to recognise indirect discrimination in your business

Given that it’s less obvious, you might find it difficult to identify instances of indirect discrimination. However, you should be aware that the legal indirect discrimination definition covers such protected characteristics as age, gender, and race.

It could also be experienced by people without protected characteristics, as when a working practice, policy or rule placing them at the same disadvantage as the protected group.

Indirect discrimination workplace examples:

• Setting unfair employment terms and conditions

• Limiting opportunities for career development and earning to particular groups

• Introducing restrictive dress codes (which may discriminate against employees who wear particular clothes for religious reasons)

• Making biased decisions in the selection of employees for redundancy

There may be an indication of indirect discrimination if the setting of policies, practices, or criteria seems to put particular groups of employees at a disadvantage. This could result in the under-representation of such groups in particular roles or departments.

You might notice the limited involvement of employees with protected characteristics in meetings or training sessions. Employee surveys may also reveal particularly low levels of satisfaction among such groups.

Indirect discrimination may be justified in some instances, as when there’s a legitimate aim for the setting of a restrictive policy. The discrimination might also be considered “proportionate, appropriate and necessary” if such aims are deemed more important than the potentially negative impacts on particular groups.

With that being said, it’s always best to look for ways of achieving such aims without discrimination. And if you’re ever in doubt it’s best to reach out to an employment law advice line and talk to a professional.

How to address and prevent indirect discrimination at work

As a business owner, you have a responsibility to take measures for the prevention of indirect discrimination. Your employees should feel confident in raising concerns or making complaints without fear of recrimination.

Any grievances should be reviewed fairly and legally, considering adjustments to avoid the offence and/or exclusion of particular groups. You should also be prepared to update any company policies that might otherwise result in unfair treatment.

You can further reduce the risk of indirect discrimination by:

• Providing all employees with diversity and inclusion training, with real-life examples for a better understanding of how such discrimination might arise

• Allowing for flexible work arrangements to accommodate workers with different needs

• Reviewing and ensuring equal access to career development opportunities

• Developing clear and confidential channels for the reporting of discrimination

• Maintaining awareness and making adjustments according to relevant laws and regulations

Any cases of indirect discrimination should be reviewed and dealt with at the earliest opportunity. A full investigation should then be carried out.

Real-world indirect discrimination cases

There have been a wide variety of legal cases, with findings of indirect discrimination having significant business impacts during recent years.

As an example, reported in a recent BBC article, Essex County Council was recently ordered to pay a former employee more than £150,000 following the ruling that she’d been discriminated against and constructively dismissed.

Council colleagues reportedly claimed that the woman had made comments that caused families to leave meetings in tears. However, the details of these accusations were withheld in an email asking the woman to share further information.

Having reviewed the case, an employment judge said that the email had been worded in such a way that it was bound to cause worry. This led to the woman experiencing mental health issues, including heightened anxiety.

After an initial period of sick leave, she decided that the only option was to resign given that the council was an unsafe place to work, and her colleagues hadn’t faced any ramifications following the unfounded complaints.

The employment judge ruled she was disabled due her anxiety and depression and that she was victim to indirect discrimination.

Assured legal support and protection from BrightHR

The county council case highlights the importance of encouraging employees to report incidents of indirect discrimination and taking follow-up action according to the Equality Act. You should then seek HR employment law advice on how to maintain fairness and respect within the workplace.

BrightHR can make the difference, with the unlimited 24/7 provision of advice enabling you to handle employment law and staff issues with confidence. Our expert HR advisors are always available to help you fulfil your legal duties and protect your business.

Other benefits include:

•  Quick and reliable advice when you need it

• Reduced legal costs with unlimited expert support

• Assured compliance with an up-to-date library of HR documents

• Easy tracking of ongoing cases with the free BrightHR app

Find out how you can reduce the risks of indirect discrimination with your free BrightHR demo.