Direct and Indirect Discrimination at Work - What's the Difference?

Author:
David Hession
Employment Law Associate Solicitor
Date:
18/07/2019

Direct discrimination at work takes place when a person is treated less favourably than others because of a “protected characteristic” (explained below). By contrast, indirect discrimination is where a provision, rule, policy or practice that applies to all people puts people with a protected characteristic at a particular disadvantage.

For free initial legal advice get in touch with our Employment Solicitors.

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What are Protected Characteristics?

The Equality Act 2010 lays out 9 characteristics that are protected by law. This makes it illegal to discriminate, harass or victimise a person on the grounds of their:

  • Age
  • DisabilityGender reassignment
  • Marriage and civil partnership status
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Direct Discrimination Explained

It is unlawful to subject an employee to a detriment because of a protected characteristic. Detriment to an employee could arise where an employer unlawfully discriminates against an employee in the terms of employment, an opportunity for promotion, training or any other benefit offered to the employee.

Let’s say, for example, there is a team of people at a company consisting of nine men and one woman, and the woman starts to notice that she’s being excluded from informal meetings and team lunches.

She may feel left out and isolated, and could possibly question if this is because she is the only female in the office. People often feel unhappy at work, but may not realise that what they are experiencing could be classed as discrimination at work.

In this case, the woman may be being left out of activities because of her sex, which is a protected characteristic and could, therefore, make her a victim of sex discrimination at work. However, in order to succeed with any legal action, she would have to show that her employer treated her “less favourably” than they would treat a comparator because of a protected characteristic.

A comparator is someone who does not share the same protected characteristic but is the same material circumstances as the claimant, i.e. the comparator for a woman with childcare responsibilities would be a man with childcare responsibilities.

Therefore, the woman would need to prove that the fact she is a woman had a significant influence on the decision to exclude her.

Indirect Discrimination Explained

Indirect discrimination at work is where a provision, criterion or practice is introduced that affects everybody but puts or would put employees with a protected characteristic at a particular disadvantage compared to others.

The intention is not relevant in the Tribunal’s decision of whether an employer is liable under indirect discrimination. However, if a Tribunal decides that there was no intent by the employer to discriminate, they may not make an award of damages.

For example, imagine an employer has decided that all staff must start working for a few hours on Saturdays. However, one member of staff is Jewish and cannot work on Saturdays as he observes Sabbath.

So while this is a rule that applies neutrally to every single member of staff, it is detrimental to this particular employee because of his religious beliefs. As a result, it could be classed as indirect discrimination on the grounds of religion.

Indirect discrimination can, however, be justified if the employer can show that the measure is a proportionate means of achieving a legitimate aim.

For example, if the employer can show it’s in the interests of health and safety, necessary for the requirements of the business, or necessary to make a profit, then the rule may be justified.

How Simpson Millar Can Help You

If you believe you have been the victim of either direct or indirect discrimination at work, get in touch our Employment Solicitors. We can provide free initial legal advice and guide you on what to do next. But be advised, there are strict time limits for making a discrimination claim.

In workplace discrimination cases, you must lodge a complaint within three months of the act or acts in question.

 

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