Understanding Indirect Discrimination in the Workplace and How to Address It

What Is Indirect Discrimination?

Indirect discrimination is when a company creates a policy or rule that applies to all staff members but unfairly disadvantages those with a protected characteristic. In the UK, the Equality Act 2010 defines the following as protected characteristics:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

All employers and staff members should be aware of these 9 characteristics and recognise that they are protected by law. If an employer creates a policy that harms or inconveniences someone with a protected characteristic, employees have the right to challenge this.

Indirect Discrimination Examples

To understand what indirect discrimination looks like, you may find it helpful to explore some examples. Here are two scenarios that could be defined as indirect discrimination:

Example 1: A clothing factory creates a “2 strikes” lateness policy. It states that any employee who turns up late more than twice (arriving after 8.30 am) will have their pay docked. This could be classed as indirect discrimination because it has the potential to affect multiple groups with protected characteristics: carers and parents with caring responsibilities, staff with religious commitments, and those with physical disabilities who may struggle to get around.

Example 2: A language school states they will only hire candidates with 10 years’ experience speaking a foreign language in a professional setting. This could be seen as indirectly discriminating against younger people who may not have been in employment for very long.

Why Indirect Discrimination Happens

Most of the time, indirect discrimination occurs because companies make rules they believe will benefit the organisation as a whole. However, this can backfire if an employer doesn’t carefully consider diverse needs. For a diverse workplace to thrive, rules and regulations should be fair and inclusive. That means carefully considering how each policy might impact people with protected characteristics.

Employers may also create rules due to unconscious bias. For example, a CEO might believe that because they personally benefit from working 9 am–5 pm in the office every day, so will others. But this view doesn’t take into account things like neurodivergent sensory needs, transport issues for physically disabled staff, or parental commitments. This is a good example of why creating one rule for everyone isn’t always the fairest system. Employers need to think about equity, too. 

Did you know? In a recent study funded by the Nuffield Foundation, 64% of fully remote disabled workers reported that their work pattern had improved their physical health, compared with just 31% of those working remotely less than half the time.

Making an Indirect Discrimination Claim Under UK Law 

To make a claim of indirect discrimination, four key legal criteria must be met in line with Section 19 of the Equality Act 2010:

1. The Provision, Criterion, or Practice (PCP): The employer must have a rule, policy, or practice (formal or informal) that applies to all employees across the board.
2. Group Disadvantage: The PCP puts (or would put) people who share a specific protected characteristic at a particular disadvantage compared to those who do not.
3. Individual Disadvantage: The specific employee making the accusation must have personally suffered that disadvantage.
4. No Objective Justification: The employer cannot show that the policy is a proportionate means of achieving a legitimate aim.

What is “Objective Justification”?

Employers may be able to legally justify their decision to mandate a rule if it’s believed there’s good reason to do so. This is known as “objective justification”. Objective justification may be appropriate if:

• It protects staff against risk (e.g. it promotes health and safety in the workplace)
• Any discrimination is “proportionate, appropriate and necessary” – this means that the benefit or importance of the decision is much greater than the discriminatory impact it has on a select group of people

How to Address Indirect Discrimination in the Workplace

If an employee is confident that their claim meets the legal criteria for indirect discrimination, they should first speak to their manager or HR informally. This allows the employer to investigate potential issues and come to a reasonable solution. If this doesn’t work, the employee should raise a grievance. 

When a grievance fails to resolve the issue, the next possible steps are:

Acas Early Conciliation: Before anything goes to a tribunal, the employee has to get in touch with Acas. Acas will then get involved and give both sides a chance to talk things through to see if they can reach a settlement without going to court.

Employment Tribunal: If those discussions don’t lead anywhere, the employee can then submit a formal claim. They usually need to do this within three months minus one day from when the discriminatory act happened.

Employer’s Defence: Once the case reaches the tribunal, the employer will try to justify the policy by showing it was a “proportionate means of achieving a legitimate aim” – basically, that the policy was necessary and reasonable in the circumstances.

After that, the tribunal weighs the evidence from both sides and then issues its decision. If the employee wins, the tribunal decides on compensation or other remedies.

FAQs

Direct vs indirect discrimination: what’s the difference?

The main difference between direct discrimination and indirect discrimination is how the unfair treatment arises. Direct discrimination is when a person is treated unfairly because of a protected characteristic, whereas indirect discrimination is when a rule or policy that applies to everyone puts people with a protected characteristic at a disadvantage, even if that wasn’t the intention.

How can you prove indirect discrimination?

You can prove indirect discrimination if your employer’s rule, policy, or practice applies to all staff members, puts (or would put) people with a protected characteristic at a disadvantage, and if the disadvantage directly applies to you. You also need to ensure that your employer can’t justify their policy with “objective justification”. This is where the decision to maintain a policy is deemed “proportionate, appropriate and necessary”.

How can I avoid indirect discrimination as an employer?

You can avoid indirect discrimination by checking that any rule or requirement you introduce is necessary, fair, and doesn’t disadvantage people with a protected characteristic. This means regularly reviewing workplace policies, carrying out equality impact assessments, offering reasonable adjustments, and consulting staff before changes so you can spot unintended consequences early. The goal is to ensure that policies apply to everyone but don’t unfairly burden particular groups.