The Equality Act 2010 - Indirect discrimination

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Overview

Indirect discrimination, as outlined in the Equality Act 2010, is vital for aspiring solicitors preparing for the SQE1 FLK1 exam. Unlike direct discrimination, indirect discrimination involves more hidden forms of inequality, which occur when seemingly neutral policies or practices disproportionately affect individuals with protected characteristics. This guide covers the legal framework, essential elements, notable case law, and practical applications of indirect discrimination, providing you with the knowledge and skills needed for exam success and future legal practice.

Legal Framework and Key Elements

Statutory Definition

Section 19 of the Equality Act 2010 describes indirect discrimination as occurring when:

  1. A provision, criterion, or practice (PCP) is applied broadly.
  2. The PCP places those sharing a protected characteristic at a particular disadvantage.
  3. It similarly affects the individual claimant.
  4. The PCP cannot be justified as a necessary way to achieve a legitimate aim.

Protected Characteristics

Indirect discrimination pertains to all protected characteristics under the Act, except for pregnancy and maternity:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Key Components

To establish a claim of indirect discrimination, four elements must be met:

  1. PCP with Broad Application: The policy or practice must apply universally.
  2. Disproportionate Impact: The PCP must significantly affect a group with a protected characteristic.
  3. Individual Effect: The claimant must show personal disadvantage due to their protected characteristic.
  4. Lack of Justification: The PCP must be unjustifiable as a way to achieve a legitimate aim.

Legal Tests and Burdens of Proof

The Four-Stage Test

Courts use a four-stage test to assess claims:

  1. Identifying the PCP
  2. Determining the disadvantage
  3. Establishing causation
  4. Assessing justification

The Comparator Test

This involves comparing the claimant with a hypothetical individual without the protected characteristic. The claimant must show they were treated less favorably.

Burden of Proof

Once a prima facie case is established, the burden shifts to the respondent to justify the PCP.

The Proportionality Test

The proportionality test is essential. It involves weighing the discriminatory effect of the PCP against the needs of the party applying it. Considerations include:

  • The extent of the discriminatory effect
  • The reasons for the PCP
  • Possible alternatives
  • Whether the aim could be achieved by less discriminatory means

Case Law Analysis

Essop and others v Home Office (UK Border Agency) [2017] UKSC 27

This case clarified aspects of indirect discrimination:

  • Claimants need only prove the disadvantage exists.
  • Not all group members need to be disadvantaged.
  • The claimant must show the group disadvantage affected them.

R (on the application of Seymour-Smith) v Secretary of State for Employment [2000] UKHL 12

This case established principles for using statistical evidence:

  • A considerable disparate impact is necessary.
  • A difference under 5% is unlikely substantial, over 10% might be.

Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15

This case stressed considering other measures:

  • Even a PCP with a legitimate aim may be disproportionate if the aim can be achieved in less discriminatory ways.

Eweida v. British Airways PLC (2010)

A British Airways employee was denied the right to wear a visible cross at work. The policy affected those with religious beliefs disproportionately and was not justified as a reasonable means to maintain brand image.

Defenses to Claims of Indirect Discrimination

Organizations can use certain defenses, supported by evidence:

1. Objective Justification

Arguing the PCP is a necessary means of achieving a legitimate aim involves showing:

  • Legitimate Aim: An acceptable goal, like safety or efficiency.
  • Proportionate Means: Necessity of the PCP and absence of less discriminatory alternatives.

2. Occupational Requirements

This applies when the PCP is essential for the role's performance, a narrow and strictly justified exception.

3. Positive Action

The Equality Act 2010 allows for positive action that addresses existing inequalities, which must be proportionate to the aim.

Practical Applications and Exam Considerations

Workplace Policies

When examining policies for potential discrimination, consider:

  1. Dress codes impacting religious or cultural practices
  2. Working hours affecting those with caregiving duties
  3. Physical requirements affecting age or disability

Example: A 9 am to 5 pm fixed hours policy might discriminate against those with childcare responsibilities. The employer must justify this and consider flexible alternatives.

Recruitment Practices

Assess recruitment criteria for potential discrimination:

  1. Educational requirements affecting certain groups
  2. Assessment methods impacting those with disabilities
  3. Word-of-mouth recruitment perpetuating workforce imbalances

Example: A 'recent graduate' job ad could discriminate against older candidates. Justification requires showing it's essential for the role without alternatives.

Service Provision

Consider how service provision might inadvertently discriminate:

  1. Online-only services disadvantaging older or disabled individuals
  2. Service timings affecting religious observers
  3. Language requirements impacting certain racial groups

Conclusion

Understanding indirect discrimination is essential for the SQE1 FLK1 exam and legal practice. It requires awareness of how neutral policies can result in discrimination, the ability to analyze statistics, and skill in applying the proportionality test. Key takeaways include:

  1. The four-stage test for proving indirect discrimination
  2. Identifying the correct comparison group
  3. The burden of proof shift
  4. The importance of the proportionality test
  5. The role of case law in interpretation
  6. Considering less discriminatory alternatives
  7. Applying these concepts across employment, service, and education