This page summarises ‘indirect discrimination’ under s.19 and 19A EqA. Indirect discrimination is not likely to be that important for disability – other types of claim are much more important. For more types of claim see Types of discrimination.
- Indirect discrimination involves a provision, criterion or practice (PCP) applied to people generally, but which puts people with a particular disability (or other protected characteristic) at a disadvantage. It is unlawful unless the PCP is objectively justified. Below What is ‘indirect discrimination’?
- Examples of an unjustified PCP could include a recruitment process which requires a presentation, where presentation skills are not important for the job, or a voice recognition telephone system. However, other types of EqA claim should also be available there, and will probably be easier: below Not so important for disability.
- Even a non-disabled person who is subject to the same disadvantage may be able to claim. However this is new and details have yet to be developed by the courts. Below Indirect discrimination ‘by association’.
- For example, a person may be able to claim even if the court does not accept that their stammer or other impairment is a “disability” within the EqA. Below If claimant does not have “disability” within EqA.
- There is no express exception if the employer etc did not know of the disability or disadvantage: below Knowledge.
What is ‘indirect discrimination’?
Indirect discrimination under s.19 involves a practice or criterion applied to people generally, but which has the effect of creating a barrier for those with a particular characteristic, including those with a particular disability. It is unlawful unless the practice or criterion is objectively justified. Under s.19A, even a non-disabled person who is subject to the same disadvantage may be able to claim.
Sex discrimination example: An employer does not allow a role to be done part-time, or as a job-share. This rule is likely to put women at a particular disadvantage, since they are more likely to be primary carers, so as to want to work part-time. Assuming it puts women at a particular disadvantage, a female worker who is put at the particular disadvantage can claim indirect sex discrimination, unless the employer shows the rule is objectively justified.
Note: If a female primary carer would be able to claim, a male worker who is a primary carer should also be able to claim: below Indirect discrimination ‘by association’.
As regards disability, the technical requirements to claim indirect discrimination under s.19 EqA are broadly that:
- a person (A) applies a provision, criterion or practice (‘PCP’) to people generally, and
- the PCP puts people with a particular disability (including the claimant, B) at a particular disadvantage in comparison with people who do not have that disability.
- A has an objective justification (below) defence if it shows the PCP is a proportionate means of achieving a legitimate aim.
S.19A EqA extends this to claimants who do not have the protected characteristic, but where the PCP puts them at substantively the same disadvantage: below Indirect discrimination ‘by association.
Not so important for disability
Indirect discrimination is much more important for protected characteristics other than disability, eg sex or religion. In the case of disability, it is likely to be easier to claim breach of the reasonable adjustment duty (s.20) and/or ‘discrimination’ arising from disability‘ (s.15). However, indirect discrimination does apply to disability, and can be claimed in addition to other types of disability claim.
A job applicant invited for interview has a stammer. Even though presentation skills are not relevant to the job, the recruitment process includes a presentation exercise where candidates are assessed on oral presentation skills. This practice of assessing presentation skills is likely to put people who stammer at a particular disadvantage. Given that the skills are not relevant to the job, the practice is unlikely to be justified. Assuming the practice also puts the particular job applicant at a particular disadvantage, it is therefore likely to be unlawful as indirect discrimination.
This is also likely to be a breach of the reasonable adjustment duty. It is also likely to be ‘discrimination’ arising from disability‘ if it contributes to him being rejected. (More on Presentation skills.)
Reasons why claim alternative claims under s.20 and/or s.15 may be easier include:
- the greater technicality (below) of indirect discrimination (s.19), and
- the greater focus of s.19 on the group of people with that disability, rather than on the individual claimant and the circumstances of the particular case: below Justification defence and “Same” disability.
Even if other disability discrimination claims are more obvious, a claim under s.19A EqA should be considered if it is, or may be, disputed whether the stammer meets the EqA definition of disability. This is because, unlike the other claims mentioned above, s.19A may apply even if the claimant does not have a disability. See below Indirect discrimination ‘by association.
The employer or service provider etc has an objective justification defence to indirect discrimination under s.19 or 19A if it shows the PCP is a proportionate means of achieving a legitimate aim. That link focuses on the justification defence under s.15 EqA. Largely the same considerations apply to the justification defence under ss.19 and 19A, but there are some differences which are discussed on Group test for objective justification of indirect discrimination?
Indirect discrimination does not group all disabled people together. It focuses on what disability the claimant has. The protected group – ie those who must be put at a particular disadvantage by the PCP – is people with the “same” disability as the claimant (s.6(3) EqA).
The relevant disability might be a stammer for example, but it is not clear what is meant by “same” disability. For example, is it “speech impairments” rather than stammering in particular? See 2011 guidance: What is a ‘particular’ disability?, and Reasonable adjustments by service providers>Particular kind of disability for a very similar question which has had more consideration by the courts.
(Also in deciding whether the objective justification defence applies, it may be the discriminatory effect on those with the same disability (rather than on the individual claimant) that one looks at: Objective justification: group or individual test?)
The EU Court’s 2021 decision in VL v Szpital Klinicnzy might encourage courts to take a broader approach to indirect discrimination. The EU Court said one could compare whether people with certain disabilities were at a particular disadvantage compared with persons with other disabilities, eg perhaps whether an employer’s practice put workers at a particular disadvantage if their disabilities were visible, or required reasonable adjustments to be made. British courts are not bound by this decision, but may have regard to it. For another example of how it could extend British law, see VL v Szpital Klinicnzy>Williams v Swansea case.
Are people who stammer more likely to be disadvantaged?
Let’s say the “same disability” is seen as stammering. There is no need to show that the PCP disadvantages everyone who stammers, or even most people who stammer.
The test seems to be whether the proportion of people within the group (say people who stammer) who are disadvantaged by the PCP is greater – or perhaps significantly greater – than the proportion disadvantaged outside the group:
Essop v Home Office (UK Border Agency), Supreme Court, 2017
In an assessment required for civil servants to get promotion, Black and Minority Ethnic (BME) and older candidates had lower pass rates that white and younger candidates. The Supreme Court said: “….there is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage… Obviously, some women are taller or stronger than some men and can meet a height or strength requirement that many women could not. Some women can work full time without difficulty whereas others cannot. Yet these are paradigm examples of a PCP which may be indirectly discriminatory. The fact that some BME or older candidates could pass the test is neither here nor there. The group was at a disadvantage because the proportion of those who could pass it was smaller than the proportion of white or younger candidates. If they had all failed, it would be closer to a case of direct discrimination (because the test requirement would be a proxy for race or age).”
S.19(2)(b) EqA includes a PCP which “would put” persons with whom the claimant shares the characteristic at a disadvantage. So it should not matter if there are no other people with the particular disability who are affected by the PCP.
If it is disputed, the claimant may well need to bring evidence to show that people who stammer will tend to be disadvantaged by the PCP. This might be in the form of expert evidence, eg from a speech and language therapist specialising in stammering: Proving disability: impact statements and expert reports>Expert evidence. The Employment Code (and similar provisions in other Codes etc) says:
4.13 However, a statistical analysis may not always be appropriate or practicable, especially when there is inadequate or unreliable information, or the numbers of people are too small to allow for a statistically significant comparison. In this situation, the Employment Tribunal may find it helpful for an expert to provide evidence as to whether there is any disadvantage and, if so, the nature of it.
Employment Code para 4.13. Similarly in para 5.14 of the Services Code, and para 5.13 of the EHRC’s Technical Guidance on Further and Higher Education, 2012.
Indirect discrimination is a fairly difficult, technical area, which has been considered in many cases. I don’t go into all the technicalities here.
There is sometimes uncertainty as to what meets the legal requirements of being a “provision, criterion or practice” (PCP). Care and expertise may be required to properly formulate the PCP which one claims has been unlawfully applied.
Care and expertise may also be needed in defining the protected group and the wider group it is to be compared with, and in bringing evidence that the PCP puts the protected group at a particular disadvantage.
No need to show reason for disadvantage
It had always been thought – and has now been reaffirmed – that the claimant does not have to show the reason for the relevant disadvantage to the protected group. The law was thrown into doubt when the Court of Appeal held otherwise, but in Essop the Supreme Court has now confirmed the previous understanding. The case also gave a useful review of indirect discrimination generally.
Essop v Home Office (UK Border Agency) (bailii.org), Supreme Court, 2017
In an assessment required for civil servants to get promotion, Black and Minority Ethnic (BME) and older candidates had lower pass rates that white and younger candidates. No-one was able to identify why. The Supreme Court held it was enough that the PCP put the group at a particular disadvantage; there was no need for an explanation why.
However the disadvantage suffered by the claimant must correspond with the disadvantage suffered by the group. A candidate who failed the assessment because he did not prepare, or did not turn up for or finish it, had not suffered harm as a result of the PCP. Here it would be open to the employer to show that the causal link between the PCP and the individual disadvantage was absent.
In a joined case on pay of prison chaplains, Naeem, a scheme of increased pay for longer service led to Muslim chaplains being paid less, since they only started to be employed in 2002. The Supreme Court held the Court of Appeal was wrong to require that the reason for the particular disadvantage be something peculiar to the protected characteristic, here race or religion.
The Supreme Court outlined various “salient features” of indirect discrimination at paragraphs 24-29 of the judgment. Also, those and the rest of the case are summarised in the Supreme Court Press Summary (pdf, supremecourt.uk).
In R (Efthimiou) v The City of London, 2022, (citing R (Adiatu & IWGB) v HM Treasury) the High Court considered that there does still need to be a causal connection between the disadvantage and the PCP. The court rejected an argument that a system of charges for swimming ponds was a PCP putting disabled people at a disadvantage because they were likely to have more limited means. The court said the root problem was a lack of disposable personal income, which was unconnected to the PCP. Unlike the facts in Efthimiou, the classic PCP putting a group at a disadvantage was a requirement that must be satisfied for people to qualify for a particular opportunity or benefit. However I suggest this Efthimiou decision is problematic: see Efthimiou>Comments>Limited means due to disability.
Knowledge of disability or disadvantage
It is not clear how far a company may be liable for indirect discrimination if it did not know of the disability, or indeed of the disadvantage, and could not reasonably have known of it. Arguments for no knowledge of the disability or disadvantage being required are:
- The Equality Act contains no express ‘lack of knowledge’ defence for indirect discrimination, in contrast with the express defences for reasonable adjustments (by employers) and discrimination arising from disability. Also the group rather than individual nature of indirect discrimination (Justification defence and “Same” disability) makes it more similar to reasonable adjustments by service providers, where there is also no express lack of knowledge defence (I discuss that at Knowledge of disability in anticipatory reasonable adjustment claims).
- There is an express modification of compensation (below) for unintentional indirect discrimination, so clearly the legislation anticipates that indirect discrimination may be unintentional.
- In parliamentary debates on the Equality Act, the Solicitor General Vera Baird commented that “[indirect discrimination], of course, does not require knowledge” of the disability on the part of the employer, service provider etc (col 108, Public Bill Cttee, 9th June 2009 (parliament.uk)).
- It might be argued that the provision, criterion or practice should not have been introduced in the first place if it was not objectively justified.
On the other hand in McClintock v Department of Constitutional Affairs (bailii.org) , a case on religious discrimination, the Employment Appeal Tribunal (Elias P, at para 46) indicated that knowledge could be relevant. “It would be absurd, for example, if an employer could be liable for religious discrimination for refusing an employee time off on a Friday if the employee had not even made it clear that the reason he made this request was for religious purposes.”
S.19A: Indirect discrimination “by association”
A person can also claim indirect discrimination if they do not themself have the protected characteristic, if the PCP puts the person at substantively the same disadvantage as people who have the protected characteristic. In summary:
- This may allow a claim for indirect discrimination by someone with an impairment which, however, does not meet the EqA definition of disability: below: If claimant does not have “disability” within EqA.
- It may also open up claims by others who have no impairment: If claimant does not even have an impairment.
Assuming draft regulations are passed as expected, this will apply from at least 1st January 2024, under s.19A EqA inserted by regulation 3, draft Equality Act 2010 (Amendment) Regulations 2023. It may well also apply before that date, because s.19A aims to implement the existing effect of the EU court decision in CHEZ: below How far does this apply before 1st January, 2024?
To take a non-disability example:
Example: An employer does not allow a role to be done part-time, or as a job-share. This PCP probably* puts women at a particular disadvantage, since they are more likely to be primary carers, and so to want to work part-time. Assuming the PCP puts women at a particular disadvantage, a female worker put at the relevant disadvantage can claim indirect discrimination under s.19, unless the employer shows the PCP is objectively justified.
Assuming the PCP puts women at a particular disadvantage and is unjustified, a male worker who is a primary carer should be able to claim under s.19A EqA, if (as seems likely) the PCP puts him at substantively the same disadvantage as women.
Example based on Hardy & Hansons plc v Lax, 2005. There is a similar example in Indirect discrimination by association: An end to the confusion (at last) (cloisters.com), 2003.
*Whether a PCP puts women at a particular disadvantage in relation to caring responsibilities will depend on the evidence: Glover v Lacoste UK (bailii.org), 2023.
As regards disability, basically the legal requirements under s.19A are:
- the employer or service provider etc (A) applies a provision, criterion or practice (PCP) to the claimant (B)
- A also applies, or would apply, the PCP to (i) persons who have the same disability and (ii) persons who do not have that disability
- B does not have that disability
- the PCP puts, or would put, persons with that disability at a particular disadvantage when compared with persons who do not have it
- the PCP puts, or would put, B at substantively the same disadvantage as persons who do have that disability, and
- A cannot show the PCP is a proportionate means of achieving a legitimate aim.
If claimant does not have “disability” within EqA
S.19A (above) may allow a claim by a person who suffers substantively the same disadvantage as those with a particular disability, but does not themself have a disability within the EqA definition. Therefore, as well as other types of EqA claim (including s.19), it may be prudent to add a claim under s.19A, in case the employer or service provider etc argues that the claimant’s stammer is not a disability as defined. (See below on a possible argument limiting s.19A claims based on disability: Argument that reasonable adjustment would have been made?)
Example: A person who stammers finds a voice recognition telephone system inaccessible, and claims indirect discrimination. The service provider argues that the claimant’s stammer does not meet the EqA definition of disability. Even if the service provider were to succeed in that argument, the person should have a claim under s.19A if (broadly) the system puts at a disadvantage people whose stammer does fall within the EqA, and the system puts the claimant at substantively the same disadvantage, unless the service provider shows the system is objectively justified (ie a proportionate means of achieving a legitimate aim).
However, a person without an EqA disability could not claim for failure to make reasonable adjustments within s.20 EqA: Discrimination by association>Does not apply to reasonable adjustments or discrimination arising from disability.
Example: Assessment criteria or practices in a university oral assessment disadvantage people who stammer, eg by taking fluency into account (University>Oral exams and assessed presentations, including adjustments). Even if the university succeeded in an argment that the claimant’s stammer was not within the EqA, the student may have a claim under s.19A if the criteria or practice is unjustified, on the basis that the student is put at substantively the same disadvantage as people whose stammer falls within the EqA.
A court might refuse to accept the stammer is a disability because, for example, the court considers the activities in which the stammer has a more than minor or trivial effect are not normal day-to-day. This is less likely to be relevant in an employment claim (including a claim against a professional exam body) where normal day-to-day activities are taken to include most work-related activities: Disability: ‘Normal day-to-day activities’>EU law: ‘normal day-to-day activity’ is very wide in employment claims. That wider definition of disability in employment claims should make it more likely that a disadvantage caused by a workplace PCP means the stammer (or other impairment) has the required substantial effect on normal day-to-day activities.
A court might also refuse to accept the stammer is a disability within the EqA if the stammer has only very recently started, and there is not sufficient evidence that (as at the time of the discrimination) its effect “may well” last 12 months so as to be “long-term”. This issue of whether the effect is “long-term” can more commonly apply to mental health conditions like depression or stress, where quite often a tribunal is not satisfied that the effect is long-term. Again, the person may be able to claim under s.19A if the PCP puts them at substantively the same disadvantage as people with a particular disability (the effect of which is long-term), even though the tribunal finds the claimant not to have a disability within the EqA definition.
Read with s.16(3) EqA, the question under s.19A(1)(d) seems to be whether the PCP puts people with the “same disability”(above) at a particular disadvantage, ie not disabled people generally. Similarly the question under s.19A(1)(e) seems to be whether the PCP puts the claimant at substantively the same disadvantage as persons who do share that same disability. This makes it easier to fall within s.19A. “Same disability” presumably excludes anything outside the EqA definition of “disability”.
Argument that reasonable adjustment would have been made?
S.19A(1)(b)(i) requires that the employer or service provider etc applies, or would apply, the PCP to persons who have the same disability. “Would apply” seems to mean that even if, say, the employer doesn’t have a worker with that disability at the moment, if it did have someone with the disability it would apply the PCP.
Could an employer or service provider etc therefore escape liability under s.19A by arguing that for anyone with that disability falling within the EqA, the employer etc would not have applied the PCP, because it would have made a reasonable adjustment?
This argument may well be raised in future cases. However it will very much depend on the facts of the case. Also the courts will need to decide where the legal boundaries are, eg what if the employer would apply the PCP to some people with the disability but not all.
Often, though, an employer or service provider is likely to have difficulty raising this argument in practice. Whilst it will depend on the particular facts, it may well seem probable that the employer or provider would in fact have applied the PCP to someone who had a disability of the relevant sort which fell within the EqA:
- The argument could not be raised in the voice recognition example above, where the service provider applies the PCP to all alike.
- Even where reasonable adjustments might potentially be made, an employer or provider will often be arguing that it is not reasonable for them to make the relevant adjustment – that they need to apply their normal PCP because they have good reasons to do so. If so, this should make it difficult for them to argue, at the same time, that for someone else who had a stammer falling within the EqA, they would not have applied the PCP.
- At the time when the employer etc refused to disapply the PCP, it will probably have been far from clear whether the claimant had a disability within the EqA. This will only have been established by the tribunal. Again this may make it less plausible for the employer to argue it would have disapplied the PCP for someone with an EqA disability.
This possible argument against a s.19A claim is less likely to apply anyway in respect of competence standards in university and professional exams where the reasonable adjustment duty is legally excluded: Oral assessments at university: the rules>Reasonable adjustments: Exception for “competence standards” and Professional exam bodies>Technical note: What is a “competence standard”?
If claimant does not even have an impairment
S.19A might apply even if the claimant is not seeking to argue they have a disability.
Example: A mother and her child are banned from a museum, because the child has difficulty moderating his voice due to his disability. Even though the mother is not disabled, she could have a claim under s.19A, because she experiences the same disadvantage (being banned) arising from the same PCP (a requirement of silence/low noise), unless the PCP is objectively justified. Presumably a claim could also be made on behalf of the child under s.19.
Taken from an example in Indirect discrimination by association: An end to the confusion (at last) (cloisters.com). For another type of claim by a carer, that would probably not succeed, see below Need to suffer same disadvantage.
Example: A worker with a protected characteristic may be able to claim indirect discrimination under s.19 if their employer has a practice of failing to take sufficient action against harassment by third parties, such as customers or suppliers: Harassment of employees>Third-party harassment: Indirect discrimination?
This raises the possibility that a worker without a protected characteristic who suffers such harassment may also be able to claim, under s.19A.
Example: If an employer requires applicants to pass a running test – like the police “bleep test” (joiningthepolice.co.uk) – a candidate who is unable to run fast enough or for the required length of time, just because they are not fit enough, may arguably be able to claim under s.19A, if the employer cannot show the test is justified. Clearly such a test puts people with some disabilities at a particular disadvantage, although the police would say the test is justified in their case.
Note: Is a claimant who would be able to train to get fit enough at substantively the same disadvantage as those with a disability? That would be for the courts to consider. Also this example is subject to the possible Argument that reasonable adjustment would have been made?
EU court decision in CHEZ
In CHEZ, the EU Court of Justice held that a person could claim indirect race discrimination even though she herself did not have the particular racial or ethnic background.
CHEZ v Komisia za zashtita ot diskriminatsia, EU Court of Justice, 2015
An electricity compacny placed electricity meters several metres high in districts inhabited mainly by persons of Roma origin. This was to prevent tampering etc, but also meant they were too high to read. The claimant was not Roma herself but lived in such a district. The EU court held she could claim for either direct or indirect race discrimination, even though she was not Roma.
From 1st January 2024, by virtue of regulation 3 of draft 2023 regulations, s.19A EqA is expected to expressly enact this decision into British law, as discussed above. The government considers the EU decision in CHEZ would or might otherwise have ceased to have effect in Britain, due to the Retained EU Law (Revocation and Reform) Act 2023.
How far does this apply before 1st January, 2024?
S.19A effectively seems likely to apply even before 1st January 2024, in employment claims.
Before 1st January 2024 the relevant British legislation, namely s.19 EqA, is not consistent with the CHEZ ruling (above), because s.19 says the claimant must share the protected characteristic. However, the government’s reasons for introducing s.19A from 1st January 2024 (see next paragraph) imply that it sees British law as already having the effect set out in s.19A. The government probably sees CHEZ as having taken effect in Britain through “re-interpretation” of s.19 under the Marleasing principle: Framework Employment Directive>Where UK law is inconsistent, what happens? Alternatively CHEZ might apply in Britain through direct effect (for a public sector employer) or “horizontal” direct effect (for a private sector employer), as discussed at the same link.
In its Explanatory Memorandum for the draft 2023 regulations, the government says (at §7.32) that s.19A “reproduces interpretive effects of retained EU law to enable claimants without a relevant protected characteristic who suffer from a disadvantage together with persons with the protected characteristic as a result of a discriminatory PCP to continue to bring a claim”. However, in doing so, “the regulation resolves ambiguities, removes doubts and anomalies and facilitates improvement in the clarity and accessibility of the law.” More generally (at §2.1), “in the areas covered by this instrument [incl s.19A], the law will continue to have the same effect after the end of 2023 as it did before.”
Courts do not have to follow the government’s view of the position before January 2024, but seem likely to do so.
However, it seems that before January 2024, as regards disability, British courts should follow CHEZ (effectively s.19A) only in employment claims. This is because the EU Framework Employment Directive with which s.19 is incompatible applies only in the field of employment and occupation. From 1st January 2024, when claimants can actually rely on s.19A, claims are not limited to employment. In the disability field, therefore, s.19A extends the effect of CHEZ by applying it beyond employment.
Need to suffer the same disadvantage
Courts will need to flesh out what it means to be put at substantively the same disadvantage.
However this requirement means the courts will almost certainly not follow:
Follows v Nationwide Building Society, Employment Tribunal, 2021
The tribunal, citing CHEZ, held that a worker caring for her disabled mother could claim indirect disability discrimination when asked to give up home-working. The tribunal allowed the claim even though it was the mother rather than the claimant who was disabled.
The situation in Follows was superficially similar to Coleman v EBR Attridge Law, where a mother was allowed to claim direct discrimination by association in respect of her child’s disability. However, as regards indirect discrimination, in CHEZ the claimant was subject to the same disadvantage as those with the protected characteristic of race (Roma ethnic origin). The claimant in Follows, caring for her disabled mother, seems not to have been put at the same disadvantage as disabled people. There are later employment tribunal decisions which disagreed with applying CHEZ to the Follows situation (Indirect discrimination by association: An end to the confusion (at last) (cloisters.com). S.19A EqA now makes it even more unlikely that British courts would do so, particularly because it was never clear that the EU court meant CHEZ to go beyond claimants put at the same disadvantage.
It has been suggested that it is misleading to call s.19A indirect discrimination “by association”, and that discrimination “by ricochet” is more helpful language (Indirect discrimination by association: An end to the confusion (at last) (cloisters.com). The test is not whether the claimant has a particular relationship or “association” with those who have the protected characteristic, but whether the claimant is put at the same disadvantage.
Note that the claimant in Follows also succeeded in her claims for unfair dismissal, and for indirect sex discrimination on the basis that “more women than men are primarily responsible for caring responsibilities at home for elderly relatives”. She could still succeed in those two claims.
Knowledge under s.19A
A claimant under s.19A would not have a disability (as defined in the EqA), so whether the employer or service provider has knowledge of the disability is not an issue.
As with s.19, the EqA also does not contain a defence for an employer or service provider etc which did not know, and could not reasonably have known, of the disadvantage at which the claimant was placed.
It is not clear how far, if at all, knowledge of the disadvantage may be relevant to a claim for indirect discrimination: see above Knowledge of disability or disadvantage.
Comparison with reasonable adjustment duty
Both indirect discrimination and the reasonable adjustment duty apply to a provision, criterion or practice (PCP) which disadvantages disabled people.
However, on the whole, the reasonable adjustment duty is less technically complex.
Also the reasonable adjustment duty can require an employer etc to make an exception to its general practice or take other steps for the individual claimant, in the light of the claimant’s individual circumstances, whereas it has been said – though cases are inconsistent – that this is not the purpose of indirect discrimination (see City of Oxford Bus Services Ltd t/a Oxford Bus Company v Harvey). This is illustrated by an employment tribunal decision:
Morris v Secretary of State for Work and Pensions (Jobcentre Plus),  EqLR 902, Employment Tribunal
The Benefit Centre at which the claimant worked applied a limit to how much part-time working there could be at the Centre. The claimant was a new mother, who also had high blood pressure which was accepted as a disability. She asked to work part-time, but the employer refused as it would breach the limit.
As regards her claim for sex discrimination, the limit on part-time working was potentially indirect sex discrimination because it put women at a particular disadvantage, due to the greater likelihood of them having childcare responsibilities. But the tribunal held the limit was not unlawful, because the employer succeeded in showing it met the objective justification test.
However, as regards disability discrimination, the position might be different under the reasonable adjustment duty. While the present claim failed, the tribunal considered that part-time working might be a reasonable adjustment for the claimant in future, if a suitable alternative part-time position could not be found within a few months. “In a disability discrimination case, the individual circumstances must be considered.”
Note: Individual circumstances should be taken into account not only in the reasonable adjustment duty (as in this case), but also when applying the objective justification defence to ‘discrimination arising from disability’. See Objective justification defence.
However, there is a special rule – albeit not very important – for indirect discrimination claims. If the tribunal or court is satisfied that the provision, criterion or practice (PCP) was not applied with the intention of discriminating against the claimant, the tribunal or court should first consider whether remedies other than compensation should be given (s.124(4)(5) EqA for employment, s.119(4)(5) EqA for County Court, Employment Code para 15.44-45, Services Code para 15.57-58).
Does this restrict the right to compensation? Not really, it seems. In Wisbey v The Commissioner of the City of London Police and College of Policing (bailii.org), 2021 the Court of Appeal held that the employment tribunal’s discretion to make a compensation order for unintentional indirect discrimination is ultimately the same whether or not this special rule applies, subject only to the order in which it must consider potential remedies. The Court of Appeal said this rule is “by no means a hurdle or barrier to awarding compensation”. The rule was therefore compatible with EU law. The court explained:
40. … There can be no doubt that employment tribunals have discretion under section 124(5) to award compensation once the other remedies have been considered and, importantly, if loss and damage have been sustained as a consequence of the indirect discrimination suffered, it is to be expected that compensation will be awarded. Moreover, such compensation should be both adequate to compensate for the loss and damage suffered and proportionate to it.
Court of Appeal in Wisbey v The Commissioner of the City of London Police and College of Policing (bailii.org), 2021. Emphasis by me.
The Wisbey case related to employment tribunals, but its reasoning seems to apply equally to County Court awards of compensation under EqA s.119. The Court of Appeal’s interpretation of the Equality Act was not based on EU law (which would only apply in an employment context).
What counts as intentional was discussed to some extent by the EAT in the Wisbey case. According to the Codes of Practice above, and para 15.45 of the EHRC’s Technical Guidance on Further and Higher Education, indirect discrimination is intentional where the respondent knew that certain consequences would follow from their actions and they wanted those consequences to follow. The Codes and Guidance say that a motive, for example of promoting business efficiency, or a university or college wanting to improve its position in the league tables, does not mean that the act of indirect discrimination is unintentional.
In any event, indirect discrimination is not normally that important for disability claims, since there will often be alternative claims for reasonable adjustments and ‘discrimination arising from disability’.