Sometimes discrimination can be easy to spot - for example, if a hotel turns you away because you’re gay. This is called direct discrimination. This is when you’re treated differently simply because of who you are.
But there are other times when you may be treated in the same way as everybody else, but it has a different and worse effect on you because of who you are. This is also discrimination. The Equality Act 2010 calls this indirect discrimination.
Read this page to find out more about indirect discrimination.
Remember, indirect discrimination is when:
- there’s a policy, practice or rule which applies to everybody in the same way
- it places people who share your protected characteristic at a disadvantage
- it places you personally at a disadvantage
- the person applying the policy, practice or rule can’t show there’s a good enough reason for it.
What’s indirect discrimination?
The law which says you mustn’t be discriminated against is called the Equality Act 2010. Discrimination which is against the Equality Act is unlawful. This means you can take action in the civil courts.
Indirect discrimination is when there’s a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others. The Equality Act says it puts you at a particular disadvantage.
What’s a practice, policy or rule?
A practice, policy or rule can be formal or informal. It can be a one-off decision or a decision to do something in the future. It includes things like arrangements, criteria, conditions, qualifications or provisions.
What’s important is that it applies to everyone in the same way, that it’s neutral. If something only applies to some people who all have the same protected characteristic, it would be direct discrimination.
Who can be indirectly discriminated against?
Something can be indirect discrimination if it has a worse effect on you because of your:
- gender reassignment
- marriage or civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
The Equality Act calls these protected characteristics.
A health club only accepts customers who are on the electoral register. This applies to all customers in the same way. But Gypsies and Travellers are less likely to be on the electoral register and therefore they’ll find it more difficult to join.
This could be indirect discrimination against Gypsies and Travellers because of the protected characteristic of race. The rule seems fair, but it has a worse effect on this particular group of people.
Who does the practice, policy or rule affect?
The practice, policy or rule applies to a certain group of people in the same way regardless of who they are. For example, you could have a rule that all employees in a shop must work on Saturdays. This is a neutral rule which affects everyone in the shop. This group is called the pool for comparison.
Within this group, some people with a particular protected characteristic may be put at a particular disadvantage by the rule. For example, if you’re Jewish and observe the Sabbath, you can’t work on Saturdays. It doesn’t matter that there aren’t any other Jewish people who work in the same shop. It can still be indirect discrimination if something would normally disadvantage people sharing your characteristic.
Are you disadvantaged?
You can only challenge a practice, policy or rule which you think is indirectly discriminatory if it affects you personally.
There’s a clause in your contract which says you may have to travel around the UK at short notice. It’s difficult for you to do this because you’re a woman with young children. This clause therefore places you at a particular disadvantage. It also places women generally at a disadvantage, as they’re more likely to be the carers of children.
You could challenge the clause because it affects you personally, even if you’ve not been asked to travel at short notice yet.
Are other people disadvantaged?
You need to show that people who share your protected characteristic are also disadvantaged, but that the other people in the group to whom the practice, policy or rule applies aren’t.
Your optician has a rule which allows payment for glasses by instalments for those in work. This rule applies to all their customers regardless of their protected characteristics. This is the pool for comparison. You’re not working because you’re a pensioner and so are not allowed to pay by instalments. The rule therefore places you at a disadvantage. It also disadvantages other pensioners who want to buy glasses by instalments.
Being a pensioner falls under the protected characteristic of age. This could be indirect discrimination, as one group of people who share the protected characteristic of age are particularly disadvantaged compared to another group.
How do you show disadvantage?
Sometimes, you can rely on common knowledge to show how some people are disadvantaged. For example, it’s common knowledge that Sunday is a day of worship for Christians. So a rule forcing staff to work on Sundays would put Christians at a particular disadvantage.
Sometimes, you may need to use statistics to show how people are disadvantaged by the policy, practice or rule. At other times, it may be necessary to use the help of an expert.
When might it not be indirect discrimination?
Indirect discrimination can sometimes be lawful. The Equality Actsays it’s not indirect discrimination if the person applying the practice, policy or rule, can show there’s a good enough reason for it. They would need to be able to prove this in court, if necessary. This is known in legal terms as objective justification.
Other useful information
Equality Advisory Support Service (EASS)
If you have experienced discrimination, you can get help from the EASS discrimination helpline.
Equality and Human Rights Commission (EHRC)
- You can find useful information about discrimination on the EHRC website at www.equalityhumanrights.com