Indirect discrimination

Examine rules that appear neutral

Section 19 of the Equality Act 2010 covers age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation. Indirect discrimination can arise where an employer applies, or would apply, the same provision, criterion or practice to people who do not share the characteristic, but it puts the group and the person concerned at a particular disadvantage.

A provision, criterion or practice, often shortened to PCP, is broad. It can be a written policy, an informal requirement, a selection criterion, a working pattern or a repeated way of making decisions. Acas gives practical indirect-discrimination examples.

Work through group and individual disadvantage

Identify the precise rule, the protected-characteristic group, the disadvantage to that group and how the individual experiences it. A complaint does not fail merely because the employer intended to treat everyone identically. The issue is the effect of the common rule.

Evidence can include workforce information, reliable wider evidence and the actual operation of the practice. Avoid treating a small internal sample as proof that no group disadvantage exists.

Pregnancy and maternity are not section 19 characteristics. A rule disadvantaging pregnant employees or new mothers may instead amount to indirect sex discrimination, alongside the specific pregnancy and maternity protections.

Test objective justification

The employer may defend the PCP if it is a proportionate means of achieving a legitimate aim. Name the real aim, show the rule contributes to it, consider less discriminatory alternatives and balance the need against the disadvantage. Cost alone will rarely be a complete explanation, although resources can be part of the evidence.

Keep this distinct from direct discrimination, which asks whether someone received less favourable treatment because of a characteristic. Also consider reasonable-adjustment duties separately where disability is involved. Northern Ireland has separate legislation, so confirm the applicable protected ground and legal wording before relying on a Great Britain analysis.