What is the difference between direct discrimination and indirect discrimination

Direct discrimination involves an employee being treated less favourably than another employee (whether actual or hypothetical) because of a protected characteristic – this generally involves an employee being treated in a particular way because of a particular protected characteristic that they possess (or that someone else possesses). For example, an employee being denied a promotion because they are female (this could amount to sex discrimination).

Indirect discrimination is subtler, occurring when policies that appear impartial disproportionately affect certain groups. For example, a dress code banning headwear could indirectly discriminate against individuals who wear head coverings for religious reasons (this could amount to religious belief discrimination).

Identifying indirect discrimination in the workplace

Recognizing indirect discrimination in the workplace can be difficult as it often stems from standard policies or practices. Employees should consider whether a particular rule or requirement disadvantages a specific group more than others and, if so, whether it disadvantages them. If so, and if the employer cannot justify the policy as a proportionate means of achieving a legitimate aim, it may constitute indirect discrimination.

Protected Characteristics Under the Equality Act 2010

The Equality Act 2010 safeguards individuals from discrimination based on the following protected characteristics:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Policies that disproportionately impact individuals with any of these characteristics may be deemed indirectly discriminatory.

Objective justification and the proportionality test

Employers can defend against claims of indirect discrimination by demonstrating that the policy or practice is a proportionate means of achieving a legitimate aim. This involves showing that the measure is necessary and appropriate, balancing the employer’s objectives against the discriminatory impact on employees. For example, a requirement for all staff to work on weekends might be justified in a retail environment where weekend trading is essential.

Common examples of indirect discrimination

Common scenarios of indirect discrimination include:

• Dress Codes: Implementing a dress code that prohibits certain attire may disadvantage employees who wear specific clothing for religious reasons.
• Working Hours: Mandating specific working hours without flexibility can adversely affect employees with caregiving responsibilities, often women
• Physical Requirements: Setting physical criteria unrelated to job performance may disadvantage individuals with disabilities

Compensation in indirect discrimination claims

Employees who successfully prove indirect discrimination may be entitled to various forms of compensation (among others):

Loss of Earnings

Compensation may cover financial losses resulting from the discrimination, such as lost wages due to missed promotions or dismissal, the lost opportunity to participate in bonuses and commission, and benefits that did not accrue (such as employer pension contributions, for example).

Injury to Feelings

Awards for injury to feelings addresses the seriousness of the discrimination and the emotional distress that it has caused (using guidance known as the “Vento guidelines”). The amount that will be awarded varies based on the severity of the case, guided by established legal bands.

We have, for your information, included references to cases below where injury to feelings was awarded to claimants:

• Miss L Fairclough v Forever 21 (UK) Ltd: 2400060/2018 – the Employment Tribunal held that a policy that employees must work 40 hours per week amounted to indirect sex discrimination, awarding the claimant £15,000 in compensation as a result
• Harris v John (ET 1400817/15) – the Employment Tribunal held that an employee who was disabled (she had breast cancer and depression) was discriminated against by her employer when grievance and disciplinary hearings were held with undue haste, and that she was harassed by the suggestion of a manager that she was lying about her cancer diagnosis
• Giles v Geach and Jones t/a Cornelia Care Homes (ET/3100720/05) – the Employment Tribunal held that Ms Giles’ employer had discriminated against her by imposing a requirement that she must work 25 hours per week in the office, awarding her almost £30,000 in compensation

Personal Injury

If the discrimination leads to physical or psychological harm, compensation may include damages for personal injury, covering medical expenses and suffering caused.

Steps to Take if You Experience Indirect Discrimination

Employees who suspect they are subject to indirect discrimination should consider the following steps:

Filing a complaint or grievance with your employer

Initiate an internal grievance procedure by formally reporting the issue to your employer. This provides an opportunity for resolution within the organization.

Further reading: grievances in the workplace – a guide for employees

Speaking to an employment lawyer

Consulting with a specialist employment lawyer can help you to receive tailored advice on your situation and potential legal remedies. An employment lawyer can advise you on your matter, try to help you reach a resolution to the situation, assist you with trying to settle your claim (via a settlement agreement), and advise you on an Employment Tribunal claim.

Going through the ACAS Early Conciliation process

Before lodging a tribunal claim, engaging in the Advisory, Conciliation and Arbitration Service (ACAS) Early Conciliation process is mandatory. This step aims to resolve disputes without formal litigation.

Starting an Employment Tribunal claim

If internal procedures and conciliation fail, you may file a claim with an Employment Tribunal. Be mindful of strict time limits, typically three months less one day from the date of the discriminatory act.

Further reading: Employment Tribunal claims – a guide for employees

Preventing indirect discrimination in the workplace

Creating an inclusive workplace requires proactive measures from employers and awareness among employees.

Employer responsibilities and best practices

Employers should regularly review policies and practices to ensure they do not inadvertently disadvantage certain groups. Providing training on equality and diversity can help prevent discriminatory practices, and can help employers to defend legal claims brought by employees.

Promoting an inclusive workplace culture

Encouraging open dialogue about diversity and fostering an environment where all employees feel valued can mitigate the risk of indirect discrimination. Implementing flexible working arrangements and accommodating diverse needs demonstrates a commitment to inclusivity.

Understanding indirect discrimination and the associated legal protections empowers employees to recognize and address unfair practices. By staying informed and proactive, both employees and employers can contribute to a fair and equitable workplace.