Learning Outcomes
After studying this article, you will be able to explain the legal definition of indirect discrimination under the Equality Act 2010, identify the four elements required to establish a claim, apply the proportionality and justification test, and distinguish indirect discrimination from direct discrimination. You will also be able to analyse practical scenarios and advise on employer obligations and defences relevant to SQE1 assessment.
SQE1 Syllabus
For SQE1, you are required to understand the concept of indirect discrimination as set out in the Equality Act 2010, including its definition, the elements required to establish a claim, and the available defences. Focus your revision on:
- the meaning of a provision, criterion or practice (PCP)
- the protected characteristics to which indirect discrimination applies
- the four-stage test for establishing indirect discrimination
- the justification defence and the proportionality test
- practical examples of indirect discrimination in employment and service provision
- the burden of proof and the role of comparators
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the four elements a claimant must prove to establish indirect discrimination under the Equality Act 2010?
- Can an employer defend a claim of indirect discrimination? If so, how?
- Give an example of a workplace policy that could amount to indirect discrimination unless justified.
- Which protected characteristics are covered by the indirect discrimination provisions of the Equality Act 2010?
Introduction
Indirect discrimination is a key concept in the Equality Act 2010. It addresses situations where a policy or rule, applied equally to everyone, has a disproportionate negative effect on people who share a particular protected characteristic. Unlike direct discrimination, which is about less favourable treatment because of a characteristic, indirect discrimination is about the impact of apparently neutral requirements.
What is Indirect Discrimination?
Indirect discrimination occurs when an organisation applies a provision, criterion or practice (PCP) to everyone, but that PCP puts people with a particular protected characteristic at a particular disadvantage compared to others, and the PCP cannot be justified.
Key Term: provision, criterion or practice (PCP) Any policy, rule, requirement, or arrangement—formal or informal—applied by an organisation to employees, clients, or service users.
Key Term: indirect discrimination Applying a PCP that disadvantages a group sharing a protected characteristic, and which cannot be objectively justified.
Protected Characteristics
Indirect discrimination applies to the following protected characteristics under the Equality Act 2010:
- age
- disability
- gender reassignment
- marriage and civil partnership (in employment only)
- race
- religion or belief
- sex
- sexual orientation
The Four-Stage Test
To establish indirect discrimination, a claimant must show:
- A PCP is applied: The organisation applies a PCP to everyone.
- Group disadvantage: The PCP puts, or would put, people sharing the protected characteristic at a particular disadvantage compared to others.
- Personal disadvantage: The claimant personally suffers that disadvantage.
- No justification: The organisation cannot show the PCP is a proportionate means of achieving a legitimate aim.
Worked Example 1.1
A law firm requires all fee earners to work full-time in the office, Monday to Friday, 9am–6pm. Is this policy potentially indirectly discriminatory?
Answer: Yes. The PCP (full-time office hours) applies to all. It may disadvantage women as a group, as they are statistically more likely to have childcare responsibilities. If a female solicitor cannot comply due to childcare and is penalised, she suffers personal disadvantage. The firm must then justify the policy as a proportionate means of achieving a legitimate aim (e.g., business need). If flexible working would achieve the same aim, the policy may be unlawful.
Group and Personal Disadvantage
The claimant must show that the PCP puts a group sharing the protected characteristic at a disadvantage compared to others, and that they personally suffer that disadvantage. Statistical evidence is often used, but is not always required.
Key Term: comparator A person in the same situation as the claimant but who does not share the protected characteristic.
Justification and the Proportionality Test
Even if the claimant establishes group and personal disadvantage, the organisation can defend the claim by showing the PCP is a proportionate means of achieving a legitimate aim.
Key Term: proportionate means of achieving a legitimate aim The PCP must be necessary and appropriate to achieve a real business or organisational objective, and there must be no less discriminatory way to achieve it.
Key Term: legitimate aim A genuine business or organisational objective, such as health and safety, efficiency, or service delivery.
Worked Example 1.2
A retailer requires all staff to speak fluent English. A job applicant whose first language is not English is rejected. Is this indirect discrimination?
Answer: The PCP (fluent English requirement) applies to all. It may disadvantage people of certain nationalities. If the applicant is personally disadvantaged, the retailer must justify the requirement. If the job involves only basic communication, the requirement may not be proportionate. If the role involves complex customer interaction, it may be justified.
Exam Warning
Indirect discrimination can arise even if there is no intention to discriminate. The focus is on the effect of the PCP, not the motive behind it.
Burden of Proof
The claimant must establish facts from which a tribunal could conclude that indirect discrimination has occurred. If this is done, the burden shifts to the respondent to justify the PCP.
Worked Example 1.3
A company requires all employees to be clean-shaven. A Sikh man, whose faith requires him to keep a beard, is disciplined for non-compliance. Is this indirect discrimination?
Answer: The clean-shaven policy is a PCP. It disadvantages Sikhs as a group, and the claimant personally. The company must justify the policy. Unless there is a strong health or safety reason, it is unlikely to be proportionate.
Practical Examples
- Dress codes: Banning head coverings may disadvantage Muslim women or Sikh men.
- Working hours: Requiring work on Saturdays may disadvantage Jewish employees who observe the Sabbath.
- Physical requirements: Imposing fitness standards may disadvantage older or disabled people.
Defending a Claim
To defend a claim, the organisation must show:
- The aim is legitimate (e.g., safety, business need).
- The PCP is proportionate—no less discriminatory alternative is available.
Revision Tip
When considering justification, always ask: Is the aim real and important? Is the PCP necessary? Could the aim be achieved in a less discriminatory way?
Key Point Checklist
This article has covered the following key knowledge points:
- Indirect discrimination occurs when a PCP disadvantages a group with a protected characteristic and cannot be justified.
- The four-stage test: PCP, group disadvantage, personal disadvantage, and lack of justification.
- Justification requires the PCP to be a proportionate means of achieving a legitimate aim.
- The burden of proof shifts to the respondent once the claimant establishes a prima facie case.
- Indirect discrimination applies to most protected characteristics under the Equality Act 2010.
- Practical examples include dress codes, working hours, and language requirements.
Key Terms and Concepts
- provision, criterion or practice (PCP)
- indirect discrimination
- comparator
- proportionate means of achieving a legitimate aim
- legitimate aim
