What is Indirect Discrimination?

Discrimination can occur in a number of different ways, with the most obvious being direct discrimination which refers to a person being treated less favourably because of who they are. At other times, a person may be treated in the same way as everybody else, but it has a different effect on them because of their age, sex, religion or sexual orientation for example. This is referred to as indirect discrimination, as outlined in The Equality Act 2010.

The following article explains indirect discrimination more thoroughly, detailing when it occurs, what legislation protects victims of discrimination and how an offence can be proven.

What constitutes as indirect discrimination?

Indirect discrimination occurs when:

• A policy, rule or practice is in place that applies to all people in the same way; and
• People who share protected characteristics are disadvantaged 
• A person or group of people are personally disadvantaged
• The person who applies the rules or procedures cannot demonstrate an adequate reason for it

Legislation stipulates that a person must not be discriminated against, as outlined in the Equality Act 2010. Acts of discrimination are unlawful, and those who discriminate against others can be held accountable in the civil courts.

What is meant by a practice, rule or policy?

A practice, rule or policy in relation to indirect discrimination can be formal or informal and it can refer to an individual decision or a choice to take action in the future. This includes considerations such as conditions, qualification, arrangements, provisions and criteria. The rules, practice and policies apply to everyone in the same way as if they did not, they would be considered as directly discriminating.

A person can only challenge or contest a practice, policy or rule that they believe to be indirectly discriminatory if they are personally affected by it. To demonstrate that others have been affected, it will be necessary to show that people who share the protected characteristic are also at a disadvantage when compared to other people who are subject to the same rule, practice or policy.

Who can be a victim of indirect discrimination?

Any person can suffer from indirect discrimination if the treatment they receive has a less favourable effect on them because of their:

• Gender or gender reassignment
• Age
• Marital status
• Disability
• Religion or beliefs
• Sexual orientation
• Race or culture

These characteristics are referred to as ‘protected characteristics' by the Equality Act.

How can a disadvantage be proven?

In some instances, common knowledge serves as an adequate way to show that some people are at a disadvantage to others. For example, some religious groups can be automatically disadvantaged by working hours that fall at the same time as common worship times. In less obvious cases, there may be a need to utilise statistics or rely upon the help of an expert to demonstrate how people are disadvantaged by the policy, practice or rule.

Can indirect discrimination ever be lawful?

There are occasions when indirect discrimination can be lawful. The Equality Act sets out that if the person who applies the rule, policy or practice can demonstrate there was a good reason for it, they will not be liable for committing an offence. To prove this, they must be able to convince a court that their reasoning is just. This is referred to as objective justification.