In the UK, under the Equality Act 2010, it is unlawful for employers and service providers to discriminate against you on the basis of one or more of what are known as ‘protected characteristics’.
In most cases, it is fairly easy to spot instances of discrimination:
- If a hotel refuses to accept the custom of a couple because of their sexual orientation, this will be illegal;
- If an employer refuses to give someone a job on account of their gender, this will be vulnerable to legal action; or
- More generally, if you are being treated less fairly because of who you are as a person, you could be entitled to make a claim for discrimination.
All of these examples are instances of direct discrimination. However, there are other situations where discrimination is less obvious to spot, but nevertheless, results in someone suffering because of who they are. This is known as indirect discrimination.
What is indirect discrimination?
Direct discrimination is where someone is treated less well, or in some way differently from other people, for a certain reason. Indirect discrimination, on the other hand, can happen when a particular practice or rule is applied to everyone in the same way, but impacts negatively on some people and not others.
A certain practice or policy can be indirectly discriminatory if it has a worse effect on someone because they possess certain characteristics. The Equality Act defines these as ‘protected characteristics’, and they are:
- Age
- Disability
- Gender reassignment
- Marriage
- Race
- Religion or beliefs
- Gender
- Sexual Orientation
In order to show there has been indirect discrimination, it must be proven that the policy or practice places someone with a protected characteristic at a particular disadvantage.
It is important to understand that a policy or practice can be either formal or informal. Furthermore, it can also be a one-off decision or a decision on how something should be done at some point in the future. The law in this area is quite sophisticated and will catch any kind of policy – arrangements, conditions or criteria – that while appearing neutral, have a particularly negative impact on people with a protected characteristic.
How to prove indirect discrimination?
In order for a claim of indirect discrimination to be taken seriously, it must be shown that an otherwise neutral practice or policy has had a negative impact on someone personally:
In some jobs in the retail sector, it is required that members of staff work at the weekends. However if certain members of staff are Jewish, and so cannot work on a Saturday owing to their observing the Sabbath, this could potentially be an indirectly discriminatory requirement; or
It may be the case that there is a requirement in a job advertisement for candidates to commit to a rotating shift pattern. However this may dissuade women from applying as they are more likely than men to have other responsibilities alongside their work, e.g. caring for children. Such a measure could potentially be indirectly discriminatory based on gender.
It must be possible for there to be an identifiable disadvantage suffered by someone possessing a protected characteristic, before a claim for indirect discrimination is possible. This is often done by looking at other people who do not share a particular protected characteristic, and demonstrating that they do not suffer to the same extent.
When is indirect discrimination not illegal?
There are certain situations where indirect discrimination may be lawfully defended. However, this will only be the case where the policy or practice in question can be objectively justified. In other words, it must be shown that there is a sufficiently important reason for that particular policy to be in place, to justify the negative impact it has on those with a protected characteristic.
Why instruct us?
At Thorley Stephenson, we are very well aware that many lawyers offer their services in the area of equality and discrimination law. However, we believe that we offer a service that is distinct from that of our competitors. Our team of experienced equality lawyers are regularly involved in complicated cases concerning alleged indirect discrimination.
We were recently involved in a case concerning suspect practices by leading supermarket, Sainsbury’s, that was reported in the national press. Our client Ms Kate Dalessio suffered from severe psoriasis which caused significant scarring to her skin, particularly her arms. Owing to the severity of her skin condition, Ms Dalessio is classified as disabled, and receives state benefits to allow her to buy specialised clothes and creams to treat her condition. During a visit to the Edinburgh branch of the store at Meadowbank, Ms Dalessio was approached by store management and asked to leave the store. This followed alleged complaints from two other store customers in the store to the management team, that Ms Dalessio’s appearance was offensive.
Ms Dalessio was told that she would be allowed to return to the store, provided that she cover the scars on her arms with a long sleeve top. The store management claimed that our client had not been asked to leave the store, or to cover up her arms. They also claimed that they were merely attempting to resolve a potentially volatile situation. Ms Dalessio instructed our specialist team of equality lawyers to act on her behalf, and we quickly lodged a claim with Sainsbury’s in respect of indirect discrimination towards our client.
The news report is available here.
Get expert assistance with your discrimination claim
At Thorley Stepheson, we understand how distressing it can be for people to be the subject of indirectly discriminatory practices. All too often, organisations defend their actions as being ‘objective’ or ‘fair’, without having due regard to the detrimental way in which they affect some people. We take our job very seriously, and will look at your case and determine whether or not there are grounds to mount a claim for indirect discrimination. If you think you have been the victim of indirect discrimination contact us now on 01315569599 and speak to a member of our team.
