The concept of direct discrimination is widely understood, particularly in the context of employment. It occurs when an employer treats a person less favourably due to their protected characteristic, as defined in the Equality Act 2010. The protected characteristics encompass various aspects such as age, disability, gender reassignment, marital or civil partnership status, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Such treatment violates Section 13 of the Equality Act 2010.
Direct Discrimination
Direct discrimination can be identified when an employer utilises a specific criterion to make judgments about potential employees. For instance, if a job applicant is told during an interview that they cannot be hired because they are too old, the criterion being applied is age. Similarly, if an employer dismisses transgender employees based on personal animosity and the requirement to conform to their assigned sex at birth, it constitutes direct discrimination.
However, what happens when an employer employs a criterion that is not directly linked to a protected characteristic, such as height? This is where the concept of indirect discrimination comes into play.
What is Indirect Discrimination?
Indirect discrimination is defined in the Equality Act as follows:
An employer indirectly discriminates against an employee when the following conditions are met:
- The employer utilises a PCP in relation to the employee.
- The employee possesses a protected characteristic.
- The same PCP is or would be applied to individuals who do not share the employee's protected characteristics.
- The PCP puts or would put individuals with the same protected characteristic at a particular disadvantage compared to others.
- The PCP puts or would put the employee at that disadvantage.
- The employer is unable to reasonably demonstrate that the PCP is a fair and reasonable method of achieving a valid objective.
Examples of Indirect Discrimination
To illustrate this concept, let's consider an example. British Airways might argue that only individuals with good eyesight can apply for a job as an airline pilot due to the legitimate aim of ensuring airline safety. In this case, such discrimination based on eyesight would be justified.
A significant legal case, Essop and Others v. the Home Office (UK Border Agency) shed light on indirect discrimination and the factors necessary to establish it. The case revolved around employees from Black and Minority Ethnic (BME) backgrounds who were over 35 years old and failed a Core Skills Assessment test (CSA) required for promotion within the Home Office.
Although statistics indicated that BME and older employees performed poorly on the CSA, the Home Office argued that the claimants needed to identify the specific reason for their failure. The Supreme Court clarified the criteria for determining indirect discrimination, presenting it as an equation.
Indirect Discrimination Equation
Criterion + Context factor = Different outcomes for people with/without a protected characteristic
In other words, when an employer's criterion combines with a contextual factor to produce different outcomes based on protected characteristics, it amounts to indirect discrimination. Returning to the height example, height serves as the criterion, while the contextual factor is that women, on average, are shorter than men. If an employer states that all applicants must be at least 6 feet tall, it will disproportionately favour men over women.
The Supreme Court emphasised the importance of assessing whether the same contextual factor caused individual disadvantages in each case. When determining whether there has been indirect discrimination, the tribunal considers the following questions:
- Is there a provision, criterion, or practice (PCP)?
- Is there a context factor?
- Do they combine to create a group disadvantage?
- Was there a disadvantage to the claimant from the context factor?
If the answer to all four questions is affirmative, the employer is deemed guilty of indirect discrimination and must attempt to justify the use of the PCP to avoid liability.
Indirect Discrimination and The Essop Case
In the Essop case, the Supreme Court affirmed the presence of indirect discrimination by addressing the four questions as follows:
- Is there a PCP? - Yes, it was the CSA.
- Is there a context factor? - Yes, the expectation that BME individuals would perform less favourably in the CSA.
- Did they combine to create a disadvantage for those with protected characteristics? - Yes, for BME individuals.
- Is the same context factor a cause of the individual disadvantage? - This was a factual matter left to the Tribunal to determine. For example, if an employee arrived late to the exam, the Tribunal might conclude that tardiness was the reason for their failure rather than the context factor of being from a BME background.
Contact Our Experts Today
If you believe you have been a victim of direct or indirect discrimination in the workplace, our law firm is here to help you fight for your rights. We understand the importance of a fair and inclusive work environment, and we are dedicated to assisting individuals like you who have experienced unjust treatment based on protected characteristics.
Our team of experienced discrimination lawyers specialises in employment law and has a deep understanding of both direct and indirect discrimination cases. We are well-versed in the provisions outlined in the Equality Act 2010 and can provide you with expert guidance and representation throughout the legal process.
Don't let workplace discrimination go unchallenged. Take action now by reaching out to our law firm. Together, we will work towards ensuring justice and equality in your workplace.
To get in touch with our employment lawyers, please contact us via phone or email. Our dedicated team is ready to schedule a confidential consultation to discuss your case and provide you with the support and representation you deserve.
Featured Image: Pexels Licence - Nicholas Swatz
