Unlike direct discrimination, which is when someone is treated less favourably because of their race, indirect discrimination happens when an employer applies a rule or practice which, although not directed at a particular racial group, puts some workers at a disadvantage because of their race. With indirect discrimination, it’s the rule or practice that causes the disadvantage, not the protected characteristic of race itself.
Section 19 of the Equality Act 2010 states that indirect race discrimination occurs when an employer’s policy, criterion, or practice (known as a ‘PCP’) applies equally to everyone but puts, or would put, one racial group at a particular disadvantage compared to others. There’s no requirement to show why the PCP causes a disadvantage but, to bring a successful claim, a worker must, be able to:
A PCP can include workplace policies, rules, and informal practices that, while applied uniformly, result in a disadvantage to a particular group. For example, requiring staff to pass a skills test for promotion might disadvantage employees of a particular race if there is evidence that Black and minority ethnic (BME) candidates are more likely to fail the test. This establishes group disadvantage.
An individual would also need to show that they are personally disadvantaged. Someone of the same racial group who failed the skills test could show individual disadvantage; but someone who did not take the skills test because they were late, for example, could not.
Even if a PCP disadvantages a racial group and the worker can show personal disadvantage, their claim will not automatically succeed. The employer can try to justify the PCP by showing it’s “a proportionate means of achieving a legitimate aim”.
There is no statutory definition of a legitimate aim, but the employer must provide evidence that justifies the PCP. Examples of legitimate aims often relied on by employers include business efficiency, health and safety, maintaining workplace standards, protecting patients or providing an efficient service. But case law has established that cost alone is not a legitimate aim.
Even if the employer’s aim is “legitimate” the means of achieving it must be proportionate, balancing the employer’s reasonable needs against the discriminatory impact on the worker. For instance, the skills test requirement might be justified based on promoting the best candidates for the job, but if it means fewer BME workers are promoted, the employer must consider if there is a less discriminatory way to do this.
Since January 2024, workers can claim indirect discrimination even if they don’t share the protected characteristic of workers who are disadvantaged—provided that they are put at “substantially the same disadvantage”. In a recent case, it was argued that non-British nationals were disadvantaged by a change in working schedule, because they were less able to comply with the schedule than British nationals. A British national brought a claim of indirect race discrimination, arguing they were put to the same disadvantage. This aspect of indirect discrimination is a new and developing area of the law.
Evidence is crucial in proving indirect discrimination. Consider the following key questions:
Evidence of whether BAME workers are, or would be, put at a particular disadvantage can come from equality statistics, policy impact analyses or other comparative evidence showing how the group is negatively affected or disadvantaged compared to others. Public sector employers like the NHS also have a specific duty to publish equality-related information. This can be useful evidence when establishing whether a new policy or practice is indirectly discriminatory.
Proving indirect race discrimination can be complex and understanding your rights and what’s required for a successful claim is crucial. If you believe you are being subjected to indirect discrimination, seek advice from your MiP rep or national officer as soon as possible. //
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