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Indirect discrimination

This page summarises 'indirect discrimination' under s.19 EqA. Indirect discrimination is not likely to be that important for disability - other types of claim are much more important. For more types of claim see Discrimination.

What is 'indirect discrimination'?

Indirect discrimination involves applying a practice or criterion which is apparently neutral, but which has the effect of creating an barrier for those with a particular characteristic. It is unlawful unless the practice or criterion is objectively justified.

Sex discrimination example: An employer does not allow job-sharing. This puts women at a particular disadvantage, since they are more likely to have child-caring responsibilities and to want to work part-time. A women who is put at a particular disadvantage could claim indirect discrimination unless the employer shows its rule against job-sharing is objectively justified.

In relation to disability, the technical requirements of indirect discrimination are, broadly, that:

Not so important for disability

Indirect discrimination is much more important for protected characteristics other the disability, eg for sex or religion. In the case of disability, it is likely to be easier to claim for breach of the reasonable adjustment duty, and/or for 'discrimination' arising from disability'. However, indirect discrimination does apply to disability.

A job applicant invited for interview has a stammer. Even though presentation skills are not relevant to the job, the recruitment process includes a presentation exercise where candidates are assessed on oral presentation skills. This practice of assessing presentation skills is likely to put people who stammer at a particular disadvantage. Given that the skills are not relevant to the job, the practice is unlikely to be justified. So assuming the practice also puts the particular job applicant at a particular disadvantage, it is likely to be unlawful as indirect discrimination.
This is also likely to be a breach of the reasonable adjustment duty, and it may well be 'discrimination' arising from disability'. (More on Presentation skills.)

'Same' disability

Indirect discrimination does not group all disabled people together. It distinguishes the 'particular' disability the claimant has, and the protected group (i.e. those who must be put at a particular disadvantage by the PCP) is people with the 'same' disability (s.6(3) EqA).

The relevant disability might be a stammer for example. However, it is not quite clear what is meant by the 'same' disability - eg is it 'speech impairments' rather than stammering in particular? See 2011 guidance: What is a 'particular' disability?

It may also be the discriminatory effect on those with the same disability (rather than on the individual claimant) that one looks at in deciding whether the objective justification defence applies: Objective justification: group or individual effect?.

Technicalities

Indirect discrimination is a fairly difficult, technical area, which has been considered in many cases. There is sometimes uncertainty as to what can meet the legal requirements as a PCP, and care and expert knowledge may be required to properly formulate the PCP which one claims has been unlawfully applied.

Comparison with reasonable adjustment duty

Both indirect discrimination and the reasonable adjustment duty apply to a provision, criterion or practice (PCP) which disadvantages disabled people.

However, on the whole, the reasonable adjustment duty is less technically complex.

Also it seems the reasonable adjustment duty may have more scope to require an employer etc to make an exception to its general practice, taking into account the individual circumstances of the claimant:

Morris v Secretary of State for Work and Pensions (Jobcentre Plus), [2012] EqLR 902, Employment Tribunal
The Benefit Centre at which the claimant worked applied a limit to how much part-time working there could be at the Centre. The claimant was a new mother, who also had high blood pressure which was accepted as a disability. She asked to work part-time, but the employer refused as it would breach the limit.

As regards her claim for sex discrimination, there could potentially be indirect sex discrimination because the limit on part-time working put women at a particular disadvantage, due to the greater likelihood of them having childcare responsibilities. But the tribunal held the limit was not unlawful, because the employer succeeded in showing it met the objective justification test.

However, as regards disability discrimination, the position might be different for the reasonable adjustment duty. While the present claim failed, the tribunal considered part-time working might be a reasonable adjustment for the claimant in future, if a suitable alternative part-time position could not be found within a few months. "In a disability discrimination case, the individual circumstances must be considered."

Note: It seems likely that individual circumstances should be taken into account not only in the reasonable adjustment duty (as in this case), but also when applying the objective justification defence to 'discrimination arising from disability'. See Objective justification defence: Case law has yet to develop.

Knowledge of disability

It is not clear how far knowledge of the disability may be required to be liable for indirect discrimination. See Indirect discrimination - is knowledge required?

Links

Legislation: s.19 EqA (link to legislation.gov.uk)
New heads of discrimination: remedying the Malcolm case - background to the new provision
Codes of Practice: Employment Code, Chapter 4; Services Code, Chapter 5.

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Last updated 6th September, 2012