Indirect Discrimination

Published on:

By: Adam Smith

In: Employee Assistance Programme (EAP)

Indirect Discrimination

Employers must act proactively to eradicate instances of indirect discrimination from the workplace.

Everybody should be treated equally in regards to workplace policies, under your provision, criteria, or practice (PCP). However certain policies may indirectly affect certain employees or groups of employees in an unfair and negative manner, resulting in indirect discrimination.

This may result in a toxic workplace atmosphere where workers feel unappreciated, not seen, and not cared for. It could lead to employees quitting or complaining about unfair treatment.

Find out what workplace indirect discrimination entails. And consider how you may prevent as much discrimination against your employee as possible.

 

What is Indirect Discrimination?

Indirect discrimination occurs when certain policies, while serving everyone equally, inadvertently hurt a particular group.

One example of indirect discrimination, there could be a minimum height requirement for a position even though it is not necessary for the job to be done. Given that women are often shorter than men, this rule would undoubtedly discriminate against them, as well as some minority ethnic groups.

Indirect workplace discrimination can occur through working circumstances, requirements, or policies in both official and informal contexts.

 

Types of Indirect Discrimination

There are nine protected characteristics, which can be breached in order to be deemed indirect discrimination (The Equality Act, 2010). The statute guards against treating employees differently based on their:

  • Age.
  • Disability.
  • Reversal of gender.
  • Either a civil union or marriage.
  • Maternity and pregnancy.
  • Race.
  • Religion or conviction.
  • Sex.
  • Sexual preference.

 

What’s the difference between direct and indirect discrimination?

Through The Equality Act (2010), there are four types of discrimination:

  • Direct discrimination
  • Indirect discrimination
  • Harassment
  • Victimisation

 

Direct Discrimination

A person experiences direct discrimination when they are regarded in a negative light due to certain characteristics:

  • One of the nine protected characteristics set out in The Equality Act (2010) including age, race and sex. This is common direct discrimination but also the only form that is permitted under the law, however it must be ‘objectively justifiable’ in order to be legal.
  • A protected trait that someone they are connected to possesses (such as a member of their family or a colleague). This is explicit associational discrimination.
  • Regardless of whether the perception is accurate or not, they are believed to possess a protected trait. This is perception-based discrimination.

Indirect Discrimination

Indirect discrimination typically occurs unintentionally and is less visible than direct discrimination.

It happens when a policy is implemented that applies to everyone; it is not inherently discriminatory, but it may penalise certain people who have a specific protected characteristic.

By law, indirect discrimination occurs when a policy or a ‘provision, criteria or practice’ (PCP) is applied to a group of people, with only some members of the group, or a particular individual, having protected characteristics. The PCP will then put those with a shared protected characteristic at a disadvantage, when compared to those who do not share the given characteristic. If the employer cannot then objectively justify the PCP, it is classed as indirect discrimination.

Harassment

Unwanted conduct towards a protected characteristic counts as harassment. It must be done with the intent to violate someone’s dignity or to put them in a hostile, demeaning, humiliating, or unpleasant atmosphere.

Harassment includes bullying, teasing, rumours, unwelcome inquiries and remarks. Not inviting someone to an event or gathering due to a protected characteristic also qualifies as harassment. Defending these actions as being a joke or ‘banter’ is not justifiable, as with harassment the victim’s perspective is more crucial than the harasser’s. Even though they do not possess the same trait as the colleague engaging in the behaviour, someone who witnesses it may nevertheless claim harassment if it has negatively impacted their dignity at work.

Victimisation

Victimisation happens when an employee experiences a “detriment” as a result of one of the following actions they took (or are accused of taking) in good faith:

  • Declaring an incident of prejudice.
  • In support of a discrimination claim.
  • Provide supporting documentation for a discrimination claim.
  • Make a complaint about unfairness or prejudice.

A “detriment” might be a loss, an inconvenient circumstance, harm, or damage. For instance, being referred to as a “troublemaker,” being excluded and overlooked, being refused training or promotion, or getting laid off.

Who can claim indirect discrimination?

Employees who claim indirect discrimination must demonstrate that they have the necessary grounds to make such an allegation.

For an employer’s policy or actions to qualify as indirect discrimination, they must put the employee at a distinct disadvantage in comparison to employees who do not share their protected characteristic; negatively affect all individuals who share that specific protected characteristic in the same way; and be neutral in that they apply to all employees and do not target people with specific protected characteristics.

An indirect discrimination claim will not be justifiable if the employee making the claim, cannot demonstrate that the majority of their colleagues who also share a given characteristic would also be adversely affected by the employer’s policy. This evidence may take the following forms:

  • General knowledge.
  • Expert judgement.
  • Through statistics.

Additionally, a regulation or policy can only be considered indirect discrimination against an employee if it directly impacts them.

 

Can indirect discrimination be justified?

If an employer can provide a valid reason for their policy, discriminating practices may be legally justifiable.

The employer must be able to show that their discriminatory action was both rational and called for and that it is “a proportionate means of achieving a legitimate aim” (The Equality Act, 2010). If it is a policy required to preserve the efficient, regular operation of the business, it may be justified, so long as there is no other rational option asides from implementing that policy.

 

How to avoid indirect discrimination

To lower the danger of illegal discrimination, employers should examine and update their organisation’s policies, practices, and rules on a regular basis. It is advisable to establish a clear equal opportunity policy that explains the norms and expectations inside your organisation, states that unlawful discrimination is not acceptable, and promotes equality and diversity.

It can be challenging to recognise indirect discrimination. The best method for employers to identify potential risks of indirect discrimination is through working with their staff and take steps to rectify any issues with certain policies and procedures. You may lessen the likelihood of prejudice by encouraging an open and transparent culture, soliciting criticism and discussion, and actively considering employee opinion.

By explaining policy changes in detail to their team and the reasons behind them, employers can reiterate their request for comments on any potential discriminatory issues. If alternatives or recommendations are made, they should be given careful consideration.

 

Raising complaints for indirect discrimination

Employees should be encouraged to voice issues without worrying about negative consequences or unfair treatment.

A clear procedure for employees to raise concerns regarding discrimination complaints. The procedure would usually mean the employee raising the issue with their employer, who should then deal with the issue in an objective and lawful manner. This may mean that the policy would change or adapt to accommodate the claim where possible, so to avoid to unlawful indirect discrimination.

 

How Valentine Occupational Health can help

Bullying, harassment, and other types of discrimination are prohibited workplace behaviours that employers have a duty to safeguard their employees against.

Employees will feel safe and secure while working for you if you provide a healthy and welcoming workspace. This can improve both business efficiency and staff retention. But without it, discrimination cases might mean facing tribunal hearings and monetary fines.

Contact us here at Valentine Occupational Health for any assistance in resolving workplace discrimination complaints. Our discreet whistleblower support enables your staff to raise complaints with confidence and feel supported throughout their case.

Our Helpline is open twenty-four hours a day, seven days a week, offering multilingual support and fully qualified counsellors who are prepared to assist.

Contact our team at 0800 020 9913 or email us at service@valentineoh.co.uk

Or follow the link for more information on our Whistleblowing service: https://valentineoh.co.uk/whistle-blowing/

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