Indirect discrimination is a form of unlawful discrimination against the following protected characteristics:
- Gender Reassignment;
- Marriage and Civil Partnership;
- Pregnancy and Maternity;
- Religion or belief;
- Sexual Orientation;
Indirect discrimination is legally defined under s19 of the Equality Act (EqA) 2010 as follows:
“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s
…a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—
(a)A applies, or would apply, it to persons with whom B does not share the characteristic,
(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c)it puts, or would put, B at that disadvantage, and
(d)A cannot show it to be a proportionate means of achieving a legitimate aim”.
Indirect discrimination arises in situations where a provision, criterion or practice which is applied equally to all people within a certain area (e.g. workplace) but only puts certain individuals, who share the same protected characteristic, at a disadvantage.
An example of this is that a school is holding a sports day event and has sent out a strict dress code policy for all children to adhere to, being a polo shirt, shorts and trainers. Owing to religious reasons, some children attend the event wearing tracksuit bottoms. The school explains that it is the policy to only wear shorts and refuses to allow the children wearing tracksuit bottoms to take part. Unless the school can justify this policy and show a legitimate aim, it will be indirect discrimination because of religion.
Indirect discrimination can be objectively justified under s19(2)(d) EqA 2010. It would need to be proved that there was an objective and proportionate justification for introducing the provision, criterion or practice within a certain area. The burden is on the employer to establish this justification, which must be a proportionate means of achieving a legitimate aim.