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Indirect discrimination

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Last updated 23rd December, 2023 (part update 17th September, 2024).

This page summarises ‘indirect discrimination’ under s.19 and 19A EqA. With a few exceptions, indirect discrimination is not likely to be that important for disability – other types of claim are much more important.

Summary

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: “Same disadvantage” indirect discrimination.

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). That is so especially because it is easier for employers and service providers etc to show objective justification of indirect discrimination, compared with equivalent defences to the reasonable adjustment duty and s.15 EqA: separate page Justification defence for indirect discrimination is easier than for other disability claims.

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 may perhaps be unjustified under s.19. If unjustified, it should be unlawful as indirect discrimination if the practice also puts the particular job applicant at a particular disadvantage.

However, there is likely to be a stronger argument that the employer is in breach of the reasonable adjustment duty, and is liable for discrimination’ arising from disability (s.15) if it contributes to him being rejected. (More on Presentation skills.) The claimant’s argument under these provisions is likely to be stronger than for indirect discrimination, for the reasons discussed at Justification defence for indirect discrimination is easier than for other disability claims.

Where may indirect discrimination be useful for disability?

As I’ve said, the usefulness of indirect discrimination for disabled claimants is limited by its being easier for employers and service providers etc to show objective justification, compared with specific disability claims: separate page Justification defence for indirect discrimination is easier than for other disability claims. However, these are some situations where indirect disability discrimination may be helpful to claimants, going beyond other types of disability claim:

Justification defence

The usefulness of indirect discrimination for disabled claimants is limited by its being easier for employers and service providers etc to justify, compared with specific disability claims. Under s.19 the question seems to be whether it was justified to apply the provision, criterion or practice to people generally, given its impact on disabled people. However under the reasonable adjustment duty, for example, a claimant can argue they should have been treated differently from other people. On that and other differences from justification under s.15 EqA, see Justification defence for indirect discrimination is easier than for other disability claims.

“Same” disability

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.

Technicalities

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

There is no statutory defence to indirect discrimination for an employer or service provider etc who does not know of the disability or disadvantage. It seems that lack of knowledge is not a defence, but the usefulness of this for claimants is likely to be limited. See Knowledge of disability in indirect discrimination.

“Same disadvantage” indirect discrimination (s.19A)

A person can claim indirect discrimination despite not having the protected characteristic themself, if the unjustified practice etc puts them at substantively the same disadvantage as the protected group. See “Same disadvantage” indirect discrimination.

Compensation: “unintentional” indirect discrimination

Generally see Remedies in employment disputes: Compensation and recommendations>Compensation and Complaints and going to court: services>Remedies.

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” (below) 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 EqA Act was not based on EU law (which would only apply in an employment context).

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’.

What is “intentional”?

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 if the employer etc knew that certain consequences would follow from its actions and it 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. This is based on:

Walker v Hussain, EAT, 1996 ICR 291
The employer introduced a policy for genuine business reasons, but knowing that the policy would cause detriment to Muslim staff. The indirect discrimination was held to be intentional.

The policy was that non-statutory holidays would no longer be permitted during the company’s busiest months, May, June and July. In the particular year, in June, this included the Muslim festival of Eid. The employer was informed of this a few days before the festival, but was not willing to vary its policy.

The case is summarised on p.16 of www.equalrightstrust.org/ertdocumentbank/Microsoft%20Word%20-%20UK-Religion%20_and%20others_-Employment%20_Shearman_.pdf

What counts as intentional was also dealt with to some extent by the EAT in the Wisbey case already discussed above:

Wisbey v The Commissioner of the City of London Police and College of Policing (bailii.org), 2021
The unlawful indirect sex discrimination in this case was imposing colour vision requirements for driving, which disadvantaged men because they are much more likely than women to have colour vision defects. However, the indirect discrimination was found to be “unintentional” in that the employer did not know, in applying to the claimant the various colour vision requirements for driving, that he would be put at a particular disadvantage as a man, and did not intend that consequence. It was not widely known that a much greater proportion of men than women have colour vision defects.
Note: This was an employment tribunal decision, and the Employment Appeal Tribunal refused to allow an appeal against it to proceed to a full hearing: see eg para 19 in the Court of Appeal decision linked above.

25th anniversary of stammeringlaw, 1999-2024