EMP6
INDIRECT DISCRIMINATION (I.D)
Definition - Indirect discrimination occurs when there is equal treatment of all groups but the
effect of the provision, criterion or practice (PCP) imposed by an employer has a
disproportionate adverse impact on one group, unless the requirement can be
justified
- The definition of indirect discrimination is set out in s 19 of the Equality Act 2010
Examples The Explanatory Notes provide examples:
A woman is forced to leave her job because her employer operates a practice that
staff must work in a shift pattern which she is unable to comply with because she
needs to look after her children at particular times of day, and no allowances are
made because of those needs. This would put women (who are shown to be more
likely to be responsible for childcare) at a disadvantage, and the employer will have
indirectly discriminated against the woman unless the practice can be justified.
An observant Jewish engineer who is seeking an advanced diploma decides (even
though he is sufficiently qualified to do so) not to apply to a specialist training
company because it invariably undertakes the selection exercises for the relevant
course on Saturdays. The company will have indirectly discriminated against the
engineer unless the practice can be justified.
A Sikh boy who was refused entrance to public school unless he cut his hair and
stopped wearing a turban = Indirectly discriminated against
Job applicants requiring certain weight requirements
Age requirement between 17 ½ to 28 – Was discriminatory – As most women having
children that age / immigrant applicants may obtain later qualification than people
in UK so may be older
Requirement that an employee should work FT as opposed to PT may indirectly
discriminate against women (Home Office v Holmes (1984))
A company decided no holidays between May—July period. When Eid fell in June
1992, company refused to make exceptions for Muslim employees even though they
offered to work extra hours. Was ruled ID. (JH Walker Ltd v Hussain and Others
(1996))
A requirement to be available for duty 24 hours a day, seven days a week, taken
together with a restriction on bringing relatives abroad to facilitate childcare, was
indirectly discriminatory on grounds of sex and race (MoD v DeBique)
A height requirement for police was not justified
Elements of To bring a claim of indirect discrimination, a claimant must:
an ID claim - Show that he belongs to a particular protected group
- Must show that he is put to the disadvantage to which the protected group to which
he belongs is put
- A provision, criterion or practice (PCP) must then be identified which is applied to the
claimant and has or would have an adverse impact on the claimant
- The PCP must be apparently neutral; if it is premised on a rule that is itself
discriminatory, the claim is likely to be one of direct discrimination
Defence to Only 1 defence to an indirect discrimination claim:
ID Justification, i.e. that the application of the PCP constituted a proportionate
means of achieving a legitimate aim
Meaning of - The phrase ‘provision, criterion or practice’ (PCP) is not defined but must be
provision, apparently neutral and will cover informal and formal working practices, and will
INDIRECT DISCRIMINATION (I.D)
Definition - Indirect discrimination occurs when there is equal treatment of all groups but the
effect of the provision, criterion or practice (PCP) imposed by an employer has a
disproportionate adverse impact on one group, unless the requirement can be
justified
- The definition of indirect discrimination is set out in s 19 of the Equality Act 2010
Examples The Explanatory Notes provide examples:
A woman is forced to leave her job because her employer operates a practice that
staff must work in a shift pattern which she is unable to comply with because she
needs to look after her children at particular times of day, and no allowances are
made because of those needs. This would put women (who are shown to be more
likely to be responsible for childcare) at a disadvantage, and the employer will have
indirectly discriminated against the woman unless the practice can be justified.
An observant Jewish engineer who is seeking an advanced diploma decides (even
though he is sufficiently qualified to do so) not to apply to a specialist training
company because it invariably undertakes the selection exercises for the relevant
course on Saturdays. The company will have indirectly discriminated against the
engineer unless the practice can be justified.
A Sikh boy who was refused entrance to public school unless he cut his hair and
stopped wearing a turban = Indirectly discriminated against
Job applicants requiring certain weight requirements
Age requirement between 17 ½ to 28 – Was discriminatory – As most women having
children that age / immigrant applicants may obtain later qualification than people
in UK so may be older
Requirement that an employee should work FT as opposed to PT may indirectly
discriminate against women (Home Office v Holmes (1984))
A company decided no holidays between May—July period. When Eid fell in June
1992, company refused to make exceptions for Muslim employees even though they
offered to work extra hours. Was ruled ID. (JH Walker Ltd v Hussain and Others
(1996))
A requirement to be available for duty 24 hours a day, seven days a week, taken
together with a restriction on bringing relatives abroad to facilitate childcare, was
indirectly discriminatory on grounds of sex and race (MoD v DeBique)
A height requirement for police was not justified
Elements of To bring a claim of indirect discrimination, a claimant must:
an ID claim - Show that he belongs to a particular protected group
- Must show that he is put to the disadvantage to which the protected group to which
he belongs is put
- A provision, criterion or practice (PCP) must then be identified which is applied to the
claimant and has or would have an adverse impact on the claimant
- The PCP must be apparently neutral; if it is premised on a rule that is itself
discriminatory, the claim is likely to be one of direct discrimination
Defence to Only 1 defence to an indirect discrimination claim:
ID Justification, i.e. that the application of the PCP constituted a proportionate
means of achieving a legitimate aim
Meaning of - The phrase ‘provision, criterion or practice’ (PCP) is not defined but must be
provision, apparently neutral and will cover informal and formal working practices, and will
