Defining indirect discrimination
Indirect discrimination is defined as a €provision, criterion or practice' which is applied to all employees, that puts those with a protected characteristic at a particular disadvantage as compared to those who do not share that protected characteristic. This includes terms and conditions of employment and rules as well more informal work policies such as dress codes. The relevant practice need not be intentionally discriminatory. A few examples of indirect discrimination:
€ Having a height requirement could be indirect sex discrimination. Although the employer probably does not intend to treat women less favourably by having this requirement, women will be at a disadvantage because they tend to be smaller than men.
€ A policy prohibiting the wearing of headgear may be indirect religious discrimination.
€ A job advert requiring 10 years' experience may indirectly discriminate on the grounds of age because younger applicants would be unable to meet this requirement.
Justifying indirect discrimination
An employer may be able to justify a policy that is indirectly discriminatory if it is a proportionate means of achieving a particular aim. This means that it can be objectively justified and corresponds to a real need of the employer and is necessary to meet that need. For example requiring employees not to have a beard could be justified on the grounds of a hygiene risk if a job involved food preparation. An employer should consider requests for leave for religious holidays, but a refusal can be justified if it will affect the business.
Making a complaint about indirect discrimination
As in general the rules do not intend to cause a disadvantage, it may be possible to resolve the situation amicably with the employer, or by raising a grievance. For example if an employee who works in a supermarket is asked to handle alcohol and they object to this for religious reasons, it may be possible for the employer to transfer them to a different department to resolve the issue. If the complaint cannot be resolved with the employer, the employee can bring a discrimination claim to the employment tribunal.