Even the legal definition of indirect discrimination hints that it is the silent assassin of employment law. Organisations are often not even aware they may be discriminating. The definition begins by stating that such discrimination is often ‘an apparently neutral practice ….’ i.e. on the face of it the practice seems harmless.
However, it is anything but harmless for the employer who loses a discrimination case, or for the employee(s) who were discriminated against of course.
Indirect discrimination occurs where, whether intended by the employer or not, one group with a ‘protected characteristic’ such as race, sex, sexual orientation etc. is disadvantaged by a provision or practice at work compared to another group that does not have that protected characteristic.
The most high-profile cases are the huge equal pay claims against councils, supermarkets etc where employees doing mainly female dominated roles such as stacking shelves or cleaning have claimed indirect sexual discrimination as they believe their work is of equal value and difficulty as male dominated roles such as warehouse operatives or road workers. But they have been paid significantly less for several years.
Whilst the individual payouts in these claims have not been huge, normally a few thousand pounds each, the overall payouts have run in to the millions as so many female employees joined group claims against employers. One council was bankrupted by such a claim!
However, it is not just councils and huge organisations that are vulnerable to claims for indirect discrimination. SMEs especially need to be mindful and ensure they do not discriminate indirectly. Individual cases against smaller organisations can also be incredibly costly and, as per the above wording, often it is not obvious to the employer that they are even discriminating.
There are lots of examples, take the common practice of insisting on e.g. 5 years’ experience for job applicants. To most people this seems sensible so you can ensure the individual will be competent in the role. However, it is likely to be indirect discrimination due to age, as younger applicants are less likely to be able to comply, This may result in a significant claim against the SME from a rejected applicant who may never have even worked for you!
It is really important that employers are aware of and can spot any practices that put them at risk of an indirect discrimination claim. A cost effective way of gaining this knowledge is through our 40 minute ‘banter and behaviour in the workplace’ e-learning course that, amongst many other important subjects, explains the difference between direct and indirect discrimination, with examples that bring the learning points to life so you can fully understand the issue and take steps to avoid discriminating.
The course costs £49.95, and discounts are available for bulk purchases e.g. if you decide to train the whole team or your management team – which is highly recommended.
Banter & Behaviour in the Workplace
This new e-learning course describes the various forms of harassment and discrimination in an easy-to-understand format so organisations can appreciate where the bar is at work between acceptable behaviour and that which is likely to lead to a grievance or successful Tribunal claim.
If you have any queries about the course, indirect discrimination or harassment, discrimination and bullying in general please don’t hesitate to contact us.