Indirect discrimination is an extremely common occurrence in the workplace. Indirect Discrimination occurs where:
- An employer applies a provision, criterion or practice (a ‘PCP’) to the workplace
- The PCP applies to others without the protected characteristic
- The PCP puts people with the protected characteristic at a particular disadvantage (and puts the employee complaining at that disadvantage)
- And the employer cannot show that the PCP is a proportionate means to achieving a legitimate aim.
The protected characteristics are; age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation.
Examples can include a ‘last in first out’ criteria when selecting for redundancies where younger employees may be indirectly discriminated against due to their age or a policy or imposing a specific dress code which may indirectly discriminate on the grounds of sex, race, religion or belief or gender reassignment.
Employers must remember to consider all of the possible consequences of procedures and practices they wish to implement within their business and where possible indirect discrimination exists to consider whether the procedure or practice is a proportionate means of achieving a legitimate aim. For example a dress code that protects employee health and safety will likely serve a legitimate aim and as long as it is a proportionate step should be fine.
If you are an employer looking to implement changes to your workplace and wish to ensure that your changes do not give rise to a potential allegation of indirect discrimination please speak with Nockolds' Employment Team on 01279 755777 or get in touch with Gary Smith, Partner in our Employment Team.