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Indirect discrimination

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Last updated 1st October 2020 (part update 14th July 2021).

This page summarises ‘indirect discrimination’ under s.19 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.

What is ‘indirect discrimination’?

Indirect discrimination involves applying a practice or criterion which is apparently neutral but has the effect of creating an barrier for those with a particular characteristic. It is unlawful unless the practice or criterion is objectively justified.

Sex discrimination example: An employer does not allow job-sharing. This puts women at a particular disadvantage, since they are more likely to have child-caring responsibilities and to want to work part-time. A women who is put at a particular disadvantage could claim indirect discrimination unless the employer shows its rule against job-sharing is objectively justified.

As regards disability, the technical requirements of indirect discrimination are broadly that:

  • a person (A) applies a provision, criterion or practice (‘PCP’) to people generally, but
  • 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.

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 and/or for ‘discrimination’ arising from disability‘. 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, and is likely to be ‘discrimination’ arising from disability‘ if it contributes to him being rejected. (More on Presentation skills.)

Justification defence

The employer or service provider etc has an objective justification defence to indirect discrimination under s.19 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 s.19 as well, but there are some differences.

Unlike justification under s.15 EqA, it is the PCP as a whole which has to be justified under s.19. It is not a question of whether the employer was justified in refusing to make an exception for the claimant.

City of Oxford Bus Services Ltd t/a Oxford Bus Company v Harvey, EAT, 2018
The employer’s practice of distributing shifts to bus drivers resulted in the claimant, a Seventh Day Adventist, being required to work on his Sabbath. Was the employer’s practice unlawful as indirect religious discrimination? The EAT held that the tribunal should have considered whether the employer’s practice as a whole was justified, not whether the employer was justified in refusing to make an exception for the claimant.
See below for a Comparison with reasonable adjustment duty.

Also for indirect discrimination under s.19 the court may focus on disadvantage to people with the same disability rather than disadvantage to the particular claimant, in other words a group test: see also next heading.

‘Same’ disability

Indirect discrimination does not group all disabled people together. It distinguishes the ‘particular’ 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 (s.6(3) EqA).

The relevant disability might be a stammer for example, but it is not clear what is meant by the “same” disability. For example, is it ‘speech impairments’ rather than stammering in particular? See 2011 guidance: What is a ‘particular’ disability?

(It may also be the discriminatory effect on those with the same disability (rather than on the individual claimant) that one looks at in deciding whether the objective justification defence applies: 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. British courts are not bound by this decision but may have regard to it. For an 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 the PCP disadvantages everyone who stammers, or even most people who stammer.

Broadly, the test seems to be whether the proportion of people within the group – say people who stammer, or with speech impairments – 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).”

An example of a more recent case: In 2021 the EAT reiterated that the courts accept that women bear the greater burden of childcare responsibilities than men, and that this can limit their ability to work certain hours (Dobson v North Cumbria Integrated Care NHS Foundation Trust, EAT, 2021 (baillii.org), summarised in Tribunal failed to take judicial notice of ‘childcare disparity’ in indirect discrimination case (vwv.co.uk), 2021. So a requirement for people to work full-time, night shifts or at weekends can be indirect sex discrimination against women unless justified. Clearly many women can and so work full-time or unsocial hours. However statistically women are more likely to have a problem doing this, so the requirement is seen as putting women at a particular disadvantage.

S.19 EqA includes whether the PCP “would put” persons with whom the claimant shares the characteristic at a disadvantage. So it should not matter if there are no other other people with the particular disability who are affected by the PCP.

If it is disputed, the claimant may well have 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 a speech and language therapist specialising in stammering. 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.

There is sometimes uncertainty as to what meets the legal requirements of being a PCP, and care and expert knowledge may be required to properly formulate the PCP which one claims has been unlawfully applied.

Care may also be needed in defining the protected group and bringing evidence of particular disadvantage to it.

No need to show reason for disadvantage

It had always been thought that the claimant did not have to show the reason for the relevant disadvantage to the protected group, but the law was thrown into doubt when the Court of Appeal held otherwise. However the Supreme Court has now confirmed the previous understanding. It also gave a useful review of indirect discrimination generally.

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. 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. 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).

Indirect discrimination ‘by association’?

The EU Court of Justice has held that a person can claim indirect race discrimination even though she herself does not have the particular racial or ethnic background. This case may well apply to disability in principle, but it is unclear whether it will be important in a disability context. See ‘My comments’ on the CHEZ case (separate page).

CHEZ v Komisia za zashtita ot diskriminatsia, EU Court of Justice, 2015
An electricity company placed electricity meters several metres high in districts inhabited mainly by persons of Roma origin. This was to prevent tampering etc but also 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.

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 that is not the purpose of indirect discrimination (above 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), [2012] 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.

Knowledge of disability

Unlike provisions relating specifically to disability, the Equality Act does not contain a defence for an employer or service provider etc which did not know and could not reasonably have known of the disability. It is not clear how far knowledge of the disability may be relevant to a claim for indirect discrimination: see Indirect discrimination – is knowledge required?

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