This advice applies to Scotland. Change country
Discrimination at work - evidence in an indirect discrimination claim
The Equality Act 2010 says indirect discrimination is when your employer has a practice, policy or rule which applies to everyone in the same way and so seems fair, but it has a worse effect on some people than others - for example, because of their sex or religion.
If you’ve been indirectly discriminated at work, you may be able to make a claim in the employment tribunal.
This page explains about useful evidence if you want to make an indirect discrimination claim.
Showing indirect discrimination
You can challenge indirect discrimination at work if it’s because of your:
- gender reassignment
- marriage or civil partnership
- religion or belief
- sexual orientation.
The Equality Act calls these things protected characteristics.
If you want to make an indirect discrimination claim you need to show all of the following things:
- your employer has a policy, practice or rule which applies to everyone in the same way regardless of their protected characteristics - the Equality Act calls this a provision, criterion or practice
- the policy, practice or rule particularly disadvantages a certain group of people because of their shared protected characteristic, compared to people who don’t have this characteristic - for example, women when compared to men
- you’re personally disadvantaged by the policy, practice or rule because you belong to this group and share the same characteristic.
The following things are useful evidence for an indirect discrimination claim:
- information on the policy, practice or rule which disadvantages you. This could be - for example, a particular dress code or a requirement to work full-time or evenings.
- information on the group which is particularly disadvantaged by the policy, practice or rule and to which you belong - for example, women
- information on the disadvantage caused to the group when trying to comply with the policy, practice or rule - you may need statistical or expert information to show how your group is particularly disadvantaged compared to people who don’t share your protected characteristic.
- statistical evidence your employer has about staff in your position who can’t meet the rule - how does this compare to staff without your protected characteristic?
- evidence that your particular circumstances mean that you are disadvantaged. For example, if you’re a woman and you can’t comply with a requirement to work evenings because you have children then you should provide evidence to show how this affects you. It may be that you can't get childcare because your local nurseries aren't open after 6pm and you don't have family that live locally.
- your employer’s explanation as to why the policy, practice or rule is used and what situations it’s used in. It’s also useful to find out when it was last reviewed and if there have been any consultations about it. This is so you can try to find out if your employer can objectively justify the policy, practice or rule.
- your employer’s explanation as to why the policy, practice or rule was applied in this way rather than being adjusted to minimise the disadvantage to you.
- Employment tribunals - the general legal tests that tribunals will apply to your discrimination claim
- Indirect discrimination at work
- Spotting indirect discrimination flowchart
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.
Acas (Advisory, Conciliation and Arbitration Service) provides free and impartial information and advice on all aspects of workplace relations and employment law.
To talk to an adviser about your employment problem, call the Acas helpline on 0300 123 1100.