Indirect Discrimination

S.19 of the Equality Act 2010 defines indirect discrimination: ‘A person (A) discriminates against another (B) if they apply a provision, criterion or practice which is discriminatory in relation to a relevant characteristic of B’s’

All protected characteristics are protected from indirect discrimination, excluding pregnancy and maternity.  This is an improvement and shows how the Equality Act has raised the protection for disability to the same level as the other characteristics.

Indirect discrimination is when a policy is applied equally to everyone but has an adverse and disproportionate impact on a particular group.  The focus is on the group rather than the individual.  Indirect Discrimination can only be justified where A can show that it is a proportionate means of achieving a legitimate aim.  This applies to all protected characteristics, in comparison to direct discrimination where only age can only be justified for discrimination.

Recognising indirect discrimination ensures equal policies.

Mandla v Dowell Lee: Indirect discrimination against Sikhs; ban on headgear.

Walker v Hussain: Indirect discrimination against Indian Muslims; a ban on holidays clashing with religious holiday.

Ministry of Defence v DeBique: Indirect discrimination against females; working hours disadvantaged those with children.

·         Justifiability: Wider justification means weaker protection.  Equality Act follows Bilka-Kaufhas v Weber von Hartz decision on justification.  Defendant must prove offending policy/practice corresponds to a real need and is appropriate and necessary to that end.  The employer should always select the means of achieving a particular objective that is least discriminatory.  Previously, justification had to be ‘reasons which would appear sound to the right thinking people’, as set down by Ojutika v Manpower Services Commission.

·         Establishing the particular disadvantage and statistics: The claimant needs to prove that a proportion of the group, not all, are disadvantaged by the policy/practice.  The difficulty lies in using statistics to prove this.  Prior to 2005, the plaintiff had to prove that a ‘considerably smaller proportion’ of the disadvantaged group could comply with the policy/practice.

Indirect Discrimination is valuable in combating institutional discrimination

and less obvious discriminatory practices.  The problems lie in its difficulty to

prove and the fact that it can be justified.