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Workplace Discrimination – Direct and Indirect Discrimination

Workplace Discrimination

Understanding workplace discrimination is something that is important to everyone because everyone should understand their rights when at work. Everyone has a right to fair and equal treatment in all parts of life, including at work.

The Equality Act 2010 is the UK’s legal document which details protected characteristics and the different forms of discrimination which someone may experience. The Equality Act 2010 specifies a person’s protected characteristics as:

When it comes to race, the definition is broad, and it encompasses not just skin colour but also ethnicity, nationality, and national background. In this post, we will be focusing on what the Equality Act 2010 specifies as direct discrimination and indirect discrimination, however these characteristics are good to know since they are integral to understanding if a workplace policy, criteria or practice (PCP) is discriminatory or not.

What is direct discrimination?

Direct discrimination is when an employer treats an employee less favourably because of one or more of their protected characteristics, meaning they are treated worse than other employees who do not share their protected characteristic. This less favourable treatment can come from a PCP within the workplace which directly mention and mistreat protected characteristics. A clear example of this would be a workplace which specifies that it will not hire black people or a workplace which has rules that only apply to women but not men.

When it comes to direct discrimination, the motivation or intention of the discriminator is irrelevant, meaning whether intentional or not, discrimination is still discrimination. It is also important to note that to be direct discrimination, the person must be receiving less favourable treatment and so differential treatment is not inherently direct discrimination.

An example of direct discrimination would be a case where an employer creates a workplace PCP that directly mentions and disadvantages a group, such as instilling a hiring criterion that someone must be straight, which would be direct discrimination against LGB people based on sexual orientation, or a policy which states one group is to be treated worse than another, such as specifying that white employees get 30 minutes longer break than black employees.

What is indirect discrimination?

Indirect discrimination is more subtle forms of discrimination. It is when the PCP in a workplace do not expressly mention a protected characteristic but the policies themselves disproportionally affect people with a certain characteristic compared to their peers. If someone wishes to claim a PCP as indirect discrimination, four criteria must be satisfied. To be indirect discrimination:

  • The PCP must apply equally to everyone. If it does not apply to everyone, it may instead be direct discrimination or it may not be discrimination at all if it applies to people based on non-protected criteria, such as position in the company.
  • It must also put people with the claimant’s protected characteristic at a disadvantage compared to other employees. With means it must be proved that they are disadvantaged. This criterion means the claimant must share the protected characteristic which they are claiming is disadvantaged.
  • The claimant themself must be put at a disadvantage. This means that in a case where a female claimant is trying to show that women are disproportionately affected by a policy and can prove it but is not being negatively affected personally, the claimant would likely lose the case.
  • The fourth and final criteria is that the PCP must be shown to not be a ‘proportionate business aim’. We will go into detail on proportionate business aims in a separate article, but in simple it must be proved that the PCP is not a necessary measure the business must take to achieve a goal.

If all of these criteria can be met, a claimant can have a successful case to show whether an employer is indirectly discriminating against protected characteristics.

Examples of indirect discrimination would be a hiring criterion which states that to work at the company someone should be at least 170cm tall. Such a criteria may be considered indirect discrimination against women since on average women fall below that height cut off (at an average of 163cm) while men stand above that height cut off (at an average of 176.5cm). It is worth noting that even though it does not directly discriminate and many men will fall under that height and some women may be above that height, overall, it will have a greater impact on women than men.

What can I do about discrimination in the workplace?

If you are an employer, you can review your PCPs and scrutinise them to see if they are discriminatory in any way, and if they are you can alter them to be less discriminatory, to improve the experiences of your employees and potential employees. Sometimes, a discriminatory PCP may be necessary to achieve a legitimate business aim, but only if it is the only option.

If you are an employee and believe you are a victim of a discriminatory PCP, you can first talk to your boss, manager or HR about the issue, talk it through with them and see if the issue can be resolved. If, after communicating in house, you still believe you are victim of a discriminatory PCP, you can make a claim to an employment tribunal to try to force the company to solve the issue.

Conclusion

In this article we have discussed the two different forms of discrimination, direct and indirect. We have learned that to be direct discrimination a PCP needs to mention protected characteristics while indirectly discriminatory PCPs do not mention any protected characteristics but which negatively affect some groups much more than other groups. We have also given examples of both and suggested what you can do if you believe your workplace contains discriminatory PCPs. Armed with this information, you are now more informed and able to recognise and help to end discrimination in your workplace.

Here to Help

HR and You can advise you about your responsibilities towards your employees in regards to discrimination, and can advise you about making accomodations. If you need help implementing disability and mental health policies into your workplace, feel free to give us a call to ask about the services we could offer.

We are here to provide full advice, support, and guidance. We can advise in any HR or Employment Law matter: you can contact a member of our team on 0333 006 9489 or [email protected]

Disclaimer

This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.

HR and You Ltd, owns the copyright in this document. You must not use this document in any way that infringes the intellectual property rights in it.  You may download and print this document which you may then use, for your own internal non-profit making purposes. However, under no circumstances are you permitted to use, copy, or reproduce this document with a view to profit or gain.

In addition, you must not sell or distribute this document to third parties who are not members of your organisation, whether for monetary payment or otherwise.

This document is intended to serve as general guidance only and does not constitute legal advice. The application and impact of laws can vary widely based on the specific facts involved. This document should not be used as a substitute for consultation with professional legal or other competent advisers. Before making any decision or taking any action, you should consult a HR and You Ltd Consultant or a member of our legal team.

In no circumstances will HR and You Ltd, or any company within HR and You Ltd be liable for any decision made or action taken in reliance on the information contained within this document or for any consequential, special or similar damages, even if advised of the possibility of such damages.

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