The topic of indirect discrimination has been the focus of discussion in employment law and HR circles since the recent decisions by the Supreme Court in the cases of Naeem and Essop.
These decisions show that indirect discrimination is a live issue, and a real risk for unwary employers. But companies can mitigate the risk of facing indirect discrimination claims in the employment tribunal, and take steps to increase their chance of successfully defending a claim.
Indirect discrimination is covered by the Equality Act 2010 and takes place when:
•an employer applies a provision, criterion or practice (a PCP);
•the PCP is discriminatory in relation to an employee’s protected characteristic (eg age, disability, race etc);
•it is applied not only to the particular employee but also to colleagues who do not share that employee’s protected characteristic;
•both the employee and their colleagues who share the protected characteristic are put at a disadvantage; and
•the employer cannot justify the discriminatory practice.
Reducing the risk
To reduce the risk of indirect discrimination taking place, a sensible employer should identify existing PCPs. A PCP will not always be obvious and can encompass not just written policies but also informal initiatives and working practices; for example, insisting that all members of staff work on Sundays and threatening disciplinary sanctions if they refuse. If religious requirements mean employees cannot work on Sundays, they will be put at a disadvantage.
HR and senior management should constantly monitor policies and their potential and actual effect on staff. Line managers might not always understand the risk of introducing a new policy or consider that doing so might put a particular group of employees at a disadvantage. It is therefore important that if an organisation has an HR function, it is involved in reviewing practices regularly and actively advising senior management on any problems that might arise as a result of a particular initiative.
If an employee does grumble about a policy and there is any hint of possible indirect discrimination, the employer should immediately review the policy and, if appropriate, offer a compromise solution (or consider amendments or alternatives to the PCP). If we take the example above, the employer could consider whether workers who cannot work on Sundays owing to religious reasons could be omitted from the Sunday working roster. Is it really a requirement that all staff need to work on Sundays, or can a limited number of employees perform the duties that need to be undertaken? Any steps the employer does take will be noted by an employment tribunal if the matter is ever litigated.
Dealing with a complaint
Where a complaint is made, the employer should think about the reasons for its policy or practice and how it can be objectively justified. A PCP will only be indirectly discriminatory if an employer cannot justify it. If an employer is comfortable that a PCP can be justified as a proportionate means of achieving a legitimate aim, they can continue to apply it to the workforce. Whether a PCP can be justified by the employer depends on the nature of the PCP in question and the particular set of facts. If there are no alternatives to a particular PCP, an employer is likely to be able to justify it.
If an employee does bring an indirect claim, employers will need to think about how to best mitigate litigation. It’s advisable to instruct solicitors to seek advice on the merits of the claim and if there is a good prospect of success in defending it in the employment tribunal. On receipt of a claim form, it may be open to the employer to tackle certain elements of the claim. For example, claimants can fail to pinpoint the PCP in their claim form and the claim could be defeated at the outset, especially if it clearly hasn’t been well thought out.
If the PCP is identifiable then employers will need to think about presenting evidence at the tribunal that weakens the claimant’s arguments in respect of the disadvantage suffered, and also consider the case for justifying the policy. Ultimately, only an employment tribunal can determine if a PCP is discriminatory – but there is a wealth of case law on the issues of disadvantage and justification, and analogies can often be made by lawyers. For this reason it is sensible to get lawyers on board early. If an assessment of the risk in any given case makes it appropriate, an employer can consider whether a settlement agreement is a better route than continuing with litigation.