Indirect discrimination in the workplace occurs when a company policy, rule, or practice applies to everyone but puts a particular group of people at a disadvantage because of a protected characteristic. Unlike direct discrimination, the discrimination is often unintentional.
Understanding Indirect Discrimination
Indirect discrimination is a subtle yet pervasive form of prejudice. It arises from seemingly neutral policies, criteria, or practices (PCPs) that, in reality, disproportionately disadvantage individuals sharing a protected characteristic. These characteristics, as defined by equality laws, include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The key is that while the policy applies to everyone, its effect is discriminatory.
A Practical Example: The Head of Sales Role
Consider a scenario where a business is looking to fill a Head of Sales position. Following its established recruitment policy, the company decides to only advertise the job internally. At first glance, this might seem like a fair and standard practice for employee progression. However, upon closer inspection, it is revealed that all current employees who are eligible to apply internally for such a senior role are men.
In this situation, while the policy of internal-only advertisement applies to everyone, it effectively excludes all women from applying for the Head of Sales position because no women are in a position to apply internally. Even though the business has no intention of discriminating against women, the policy's outcome is discriminatory based on sex. This makes it a clear example of indirect sex discrimination in the workplace.
Identifying Indirect Discrimination: Key Elements
For a policy or practice to be considered indirect discrimination, three core elements must typically be present:
| Element | Description | Example (Head of Sales) |
|---|---|---|
| Provision, Criterion, or Practice (PCP) | A rule, policy, requirement, or way of doing things that is applied to everyone. | The company's policy of "only advertising the Head of Sales job internally." |
| Disadvantage | The PCP puts, or would put, a group of people sharing a protected characteristic at a particular disadvantage compared to others. | Women are put at a particular disadvantage because they are disproportionately excluded from applying for the role. |
| No Objective Justification | The employer cannot show that the PCP is a proportionate means of achieving a legitimate aim. (If they can, it may not be unlawful discrimination). | The business would need to demonstrate a legitimate, proportionate reason for only internal recruitment that outweighs the discriminatory impact. |
Impact and Consequences
Indirect discrimination can have significant negative impacts on both individuals and organizations. For individuals, it can lead to missed opportunities, career stagnation, and feelings of exclusion and unfairness. For businesses, it can result in:
- Legal Challenges: Costly lawsuits and damages for breaches of equality law.
- Reputational Damage: Harm to the company's public image and brand as an inclusive employer.
- Reduced Talent Pool: Missing out on diverse talent and the valuable perspectives, skills, and innovation that diverse teams bring.
- Lower Employee Morale: A workplace where employees feel unfairly treated can lead to decreased productivity and higher staff turnover.
Preventing Indirect Discrimination
Employers can take several proactive steps to identify and prevent indirect discrimination:
- Regular Policy Reviews: Regularly audit all workplace policies, criteria, and practices (PCPs) to assess their potential impact on different groups of employees. This includes recruitment, promotion, pay, flexible working, and training policies.
- Impact Assessments: Conduct equality impact assessments before implementing new policies or making significant changes to existing ones. This helps identify potential disproportionate disadvantages early on.
- Diverse Recruitment Strategies: Broaden recruitment methods beyond internal-only advertisements. Consider external advertising, using diverse job boards, and ensuring job descriptions are inclusive.
- Flexibility and Adaptability: Offer flexible working arrangements where possible, as rigid policies around hours or location can indirectly discriminate against parents or those with caring responsibilities.
- Training and Awareness: Provide comprehensive training to managers and HR staff on equality law, diversity, and unconscious bias to help them recognize and avoid discriminatory practices. Resources from organizations like ACAS and the Equality and Human Rights Commission (EHRC) can be invaluable.
- Data Monitoring: Collect and analyze anonymized data on the demographics of applicants, hires, and promotions to identify any patterns of disadvantage.
By actively reviewing and adjusting policies, businesses can foster a truly inclusive environment where everyone has an equal opportunity to succeed.
