Indirect Discrimination

Indirect discrimination

This form of discrimination is relatively subtle.  It arises where an employer’s 'provision, criterion or practice' (“PCP”), these are decisions, practices or policies that ostensibly appear to treat all employees in the same way but, in effect, disadvantage a particular group of employees with a particular characteristic. Where this happens, the employer’s conduct will be unlawful indirect discrimination unless it can objectively justify its actions as a legitimate aim.

Section 19 EA states:

“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

Defences to indirect discrimination

The defence to indirect discrimination is built into the definition (s.19(2)(d) EA).  It is often called the objective justification test. To defend a claim of indirect discrimination, the employer needs to show that there was a legitimate aim behind implementing the discriminatory provision, criterion or practice (‘PCP’), i.e. that there was a real business need for it, and that the PCP was a proportionate way to achieve that aim, considering its discriminatory impact.     

Example of indirect discrimination

The classic example of indirect discrimination is an employer requiring an employee to work full-time. This requirement could disadvantage women as a group, since women in society as a whole bear a greater part of domestic and childcare responsibilities than men and are more likely to want (or need) to work part-time. Unless the employer can objectively justify the need for a full-time worker to do the job, the requirement could be indirectly discriminatory against a woman with childcare responsibilities.

Protected Characteristics

The EqA 2010 addresses discrimination in respect of specific protected characteristics, including age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Indirect discrimination applies to all protected characteristics, except for pregnancy and maternity. However, indirect sex discrimination may apply in pregnancy and maternity situations.

Provision, Criterion, or Practice (PCP)

Indirect discrimination occurs when a provision, criterion, or practice (PCP) is applied to a person with a protected characteristic, which disadvantages them unless it can be objectively justified. For example, an employer requiring an employee to work full-time could disadvantage women as a group, as women bear a greater part of domestic and childcare responsibilities than men.

The EqA 2010 harmonised various definitions of indirect discrimination, but much of the old case law remains relevant. An indirect discrimination claim must point to a provision, criterion, or practice applied by the respondent, and the PCP must put the claimant at a particular disadvantage. The claimant does not need to share the protected characteristic of the disadvantaged group if they have suffered a substantively similar disadvantage.

The Equality Act 2010 added disability and gender reassignment to the protected characteristics covered by indirect discrimination law. There is no explicit provision for indirect pregnancy or maternity discrimination, which continues to be dealt with under the sex discrimination rules.

A provision, criterion, or practice (PCP) is a legal principle that applies to any decision made by an employer that disadvantages an individual or group with a protected characteristic. It can be determined through statistical evidence or other evidence that indicates the protected characteristic is more likely to be associated with disadvantage. In the context of employment, a PCP may include recruitment criteria, employment policies, informal practices, and one-off decisions. In the context of goods, services, or facilities, it could include formal or informal rules, conditions, or prerequisites of service and decisions to do something in the future.

Examples of PCPs

Examples of a PCP include a chain of shops requiring employees to remove headgear, a bus company adopting a policy that drivers on two particular routes must re-sit the theory test, and indirect discrimination because of religion. The Sex Discrimination Act 1975 and the Race Relations Act 1976 referred to the respondent applying a "requirement or condition" rather than a "provision, criterion, or practice." However, under the EqA 2010, there does not need to be a formal policy in place for a claimant to challenge a decision affecting them.

In some cases, a one-off flawed disciplinary procedure did not amount to a PCP, as it was common ground that the flawed procedure was not a "provision" or "criterion" and had some element of repetition. In Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School, the respondents argued that there had been no practice in a single dismissal, confusing an isolated failure to follow a policy with a decision that flows from the application, however rare, of a practice.

For a PCP to be established, there must be some form of continuum in the sense of how things generally are or will be done by the employer. In some cases, no PCP will be established in relation to a one-off act in an individual case where there is no indication that the decision would apply in the future.

In ABN Amro Management Services Ltd and another v Hogben UKEAT/0266/09, the EAT ruled that a change of policy is not a proportionate means of achieving a legitimate aim (PCP) unless it has a disparate effect. In Fasano v Reckitt Benckiser Group plc and another [2025] EWCA Civ 592, Mr. Fasano brought an indirect age discrimination claim when beneficial changes made by his former employer's parent company to a long-term incentive plan (LTIP) excluded those who had already left employment. The tribunal identified the PCP as the requirement that LTIP participants had to be employed on 18 September 2019 to benefit from the amended terms. The Court of Appeal held that the tribunal had been entitled to find that the PCP, that LTIP participants had to be employed on 18 September 2019 to benefit from the amended terms, was directed towards the retention of staff.

In Braithwaite and others v HCL Insurance BPO Services Ltd UKEAT/0152/14, the EAT held that a requirement to sign up to new terms of employment was a PCP. The disadvantage stemmed from the disparate effect it had on older and younger workers. In R (Diocese of Menevia and others) v City and County of Swansea Council [2015] EWHC 1436, the High Court held that the council's decision to amend its home to school transport policy denying free school transport to children attending faith schools was unlawful indirect discrimination as it put children of minority ethnic origin at a particular disadvantage compared with white British children.

In the case of Ministry of Defence v DeBique UKEAT/0048/09, the EAT upheld a tribunal's decision that the Army had indirectly discriminated against a female soldier from a Commonwealth country who was also a single parent. The requirement that she be available for duty on a "24/7" basis put women at a particular disadvantage (because of childcare issues), but could be objectively justified. However, a restriction on bringing relations from abroad to facilitate childcare, taken together with the 24/7 requirement, was indirectly sex and race-discriminatory. The EAT recognised that the claimant experienced a "double disadvantage" and commented that discrimination is often a "multi-faceted experience" which cannot always be compartmentalised.

Unintentionality is not relevant to the question of liability for indirect discrimination. Under section 119(5) and (6) and section 124(4) and (5) of the EqA 2010 (employment claims), if a court or tribunal finds that a respondent has indirectly discriminated against a claimant, but is satisfied that the respondent did not intend to discriminate when applying the PCP, the court or tribunal must not make an award of damages unless it first considers whether to make any other disposal, such as an injunction, recommendation or declaration.

Claimant Placed at a Disadvantage

Indirect discrimination under section 19 of the EqA 2010 requires a claimant to show that the respondent's PCP puts or would put the claimant at a disadvantage. Different rules apply under section 19A of the EqA 2010, and the EAT has held that group disadvantage must still be shown despite the European Court of Human Rights' decision in Eweida v United Kingdom [2013].

In some cases, it may be obvious who shares the claimant's protected characteristic for establishing group disadvantage. For instance, in the employment context, if a female employee claims that an employer's policy is indirectly discriminatory against women, the relevant characteristic - that of being female - is self-explanatory. However, things will not always be so straightforward. For example, people will share the protected characteristic of age when they are of the same "age group". This definition gives a claimant considerable flexibility when identifying the age group that has allegedly been disadvantaged by a PCP.

In the context of disability discrimination, the ECJ held that direct discrimination could be established if the date criterion was found to be inextricably linked to disability, which would be for the national court to decide. It also held that indirect discrimination could arise if workers with certain disabilities were subject to a particular disadvantage when compared to workers with other disabilities.

Courts and tribunals sometimes give judicial notice to matters without admissions from a party or the need for evidence. In an indirect sex discrimination claim, Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19, the EAT held that the tribunal should have taken judicial notice of the "childcare disparity", namely that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men. The childcare disparity did not inevitably lead to the conclusion that any form of flexible working puts or would put women at a particular disadvantage.