How indirect discrimination can affect you at work

Indirect discrimination can sometimes go unchallenged by employees who are unsure whether a workplace practice, management decision or policy that adversely impacts them is lawful or not.

To give you more insight into indirect discrimination, we discuss how it differs from direct discrimination, offer some examples and suggest what you may be able to do if you’re being indirectly discriminated against.

See our main guide on discrimination for further detail.

What is indirect discrimination?

Indirect discrimination occurs when there is a practice, policy, rule or management decision that is applied to all employees in the same way, but has a greater negative effect on one or more employees when compared with others.

See below for some practical examples of indirect discrimination.

 

What’s the difference between indirect and direct discrimination?

You are protected by The Equality Act 2010 from being discriminated against because of ‘protected characteristics’ such as your age, sex, race, religion, disability, sexual orientation and whether or not you are pregnant or have recently given birth.

(See our discrimination guide for the full range of protected characteristics.)

Direct discrimination

Direct discrimination occurs when you’re treated badly because you have one of the protected characteristics mentioned above.

An example is when a promotion is offered to a man rather than a woman, even though the woman is better qualified for the position than the man. This is an example of direct sex discrimination.

Direct discrimination is probably easier than indirect discrimination to identify, because you’re being discriminated against because of who/what you are or what you believe in.

Indirect discrimination

Indirect discrimination doesn’t directly target you or any particular individual. It’s often an unintended consequence of a poorly thought-through policy or decision made by your employer.

Indirect discrimination can affect a wide range of people in a variety of ways. However, you can only usually challenge a policy or rule that you think is indirectly discriminatory, or make a claim for indirect discrimination, if it affects you personally.

Examples of indirect discrimination

To illustrate how indirect discrimination can happen in practice, here are some examples:

Indirect sex discrimination

If you are a woman on maternity leave and want to reduce your working hours for childcare purposes, you might consider putting in a request for flexible working or part-time work.

However, if your request is turned down because your employer has a blanket policy in place that states all staff must work full-time, you could have a case for indirect sex discrimination.

This is because it can be argued that the full-time policy has a worse effect on women than it does on men. Statistics show that women are more likely to provide home care for their children or dependents, which means they have a higher requirement for flexible hours.

Indirect religious discrimination

Some businesses may have a policy that makes it mandatory for all employees to work a Saturday shift. However, this does not take into consideration the individual religious needs of their staff.

So if you are a practising Jew, you will feel unable to come to work as it is the Sabbath. On this day you’re required to abstain from work so that you may observe your religious practices.

Should your employer reject a request from you not to work on a Saturday, you could make a claim for indirect religious discrimination as you would otherwise be prevented from practising your religion.

Indirect race discrimination

Another example of indirect discrimination would be if you were a foreign national who had the right to reside and work in the UK.

You would be indirectly discriminated against if you made a job application but it was turned down by your prospective employer because they wouldn’t accept the UK-equivalent qualifications gained in another country.

In this instance, you could have a case for indirect race discrimination as the company’s policy prevents people educated outside the UK from applying, even if they hold qualifications of a UK equivalent level.

What can you do about indirect discrimination?

If you think you have experienced indirect discrimination, and if you want to raise the issue with your employer, you should consider following the steps below:

Confirm the discrimination

Take note of the protected characteristic the discrimination is about and how the rule, policy or practice has affected you worse than it has affected your colleagues who don’t share the same protected characteristic.

Even if you signed an employment contract accepting the rule (etc), doing so wouldn’t prevent you from taking matters further.

Speak informally with your employer

Once you have put together the details of your case, you should ask to speak with your employer about the situation and explain why you think it affects you more than others.

Hopefully, your employer will take your concerns on board and take positive action to improve the situation for you.

Make a formal complaint

If you raise the issue with your employer and they refuse to change the rule or dismiss/ignore your concerns, you may want to consider making a formal complaint or ‘raising a grievance’.

This will demonstrate how serious you are about the issue, and it could lead to an apology or a remedy being applied that you are happy with.

Further actions

If you have followed the above steps and the situation has not improved, you may want to take the matter further.

At one extreme, you could resign and claim ‘constructive unfair dismissal’ as well as indirect discrimination, although we don’t recommend resigning in these circumstances.

You could consider working under protest while attempting to negotiate a settlement agreement, or – if your employer refuses to negotiate – issuing an employment tribunal claim for indirect discrimination.

Before you make any big decisions of this kind, however, we strongly advise you to seek independent legal advice to help you weigh up your options.

 

Next steps

If you think you have been indirectly discriminated against at work and are not happy with how your employer has responded to your concerns, you may want to take matters further.

As specialist employment lawyers, Monaco Solicitors have a vast amount of experience in helping people who have been the victims of indirect discrimination.

We can offer you expert legal advice and guidance to strengthen your case so as to result in the best possible outcome.

If we can help you, we aim to resolve your case as quickly as possible, and always to your best advantage. To find out more about our services and no-obligation consultation, contact us:

• Via this link
• Phone: 020 7717 5259
• Email: communications@monacosolicitors.co.uk