Employees Without Protected Characteristics Can Bring an Indirect Discrimination Claim

Out of the many employment law amendments this year, a change was made to the rules of indirect discrimination. We* dive into the new legal update and what it means in terms of employment policies at work.

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What Does the Current Law Say?

Indirect discrimination occurs when an employer applies a ‘provision, criteria or practice’ (PCP) which puts or would put employees who share a protected characteristic at a particular disadvantage. To pursue this claim, an employee must show that the PCP:

  1. Puts a group of individuals that share the protected characteristic at a particular disadvantage, and,
  2. They possess the same protected characteristics, and the PCP also places them at a particular disadvantage.

What Does Indirect Discrimination at Work Look Like

A PCP can be employment policies (informal or formal), provisions in a contract of employment, criteria in a redundancy scoring exercise or just informal practices by the company. An example of an informal practice could be the expectation of an employee working long hours. This wouldn’t be in writing to be a formal policy, but the expectation for this to regularly occur could amount to a ‘practice’.

A common case example of indirect discrimination is a PCP the role must be carried out by full-time employees only. The Employment Tribunal has accepted that women are predominantly the main caregivers to their children, and as such, having such a PCP in place would place women at a particular disadvantage.

However, since 1 January 2024, indirect discrimination has expanded to provide protection to individuals who suffer the same disadvantage as the group that possesses the protected characteristic, even if they themselves do not possess the same protected characteristic.

Indirect Discrimination Claimants Don’t Need Protected Characteristics

Previously, if the Claimant was unable to meet the definition, then their claim would naturally fail as they did not possess the protected characteristic. However, with this new addition to indirect discrimination, if the Claimant was unable to meet the definition but continues to suffer the same disadvantage because of the PCP, then the Claimant can still bring a claim.

This followed a case in Bulgaria that was considered by the European Court of Justice (ECJ).  The ECJ determined that the Claimant did not have to possess the protected characteristic, as long as they could show that they suffered the same disadvantage as the group that shared the protected characteristic.

In using the same example above, the PCP of a full-time job, if a man can show that he is the main caregiver for his children, and as a result, he suffers the same disadvantage as women, then he can also pursue a claim for indirect discrimination.

Another example of when this could also apply is when a PCP would place a group of employees that share the protected characteristic of a disability at a particular disadvantage. A disability is legally defined as a physical or mental impairment that has a substantial or long-term adverse effect on their normal day-to-day activities.

This should not be confused with discrimination by association as this remains conflicted in case law.

How Redmans Solicitors Can Help

This is a significant change in the law as previously, the Claimant always had to possess the same protected characteristic as a group that shared a protected characteristic. However, this now opens the door to anyone who suffers a disadvantage because of a PCP that has been put in place by their employer.

If you have any questions about indirect discrimination at work or believe your employer is breaching your employment rights, contact Redmans Solicitors now. Following a short consultation, we can discuss whether your case is eligible to claim compensation.

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*written by Alex Hodson, senior associate at Redmans Solicitors