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Indirect discrimination


The law of indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements that look neutral on the face of it but in reality work to the comparative disadvantage of people with a particular protected characteristic (Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15).

Indirect discrimination occurs where an employer unjustifiably applies an apparently neutral provision, criterion or practice (PCP) that puts employees who share a particular protected characteristic at a disadvantage (s.19 of the Equality Act 2010).

As with direct discrimination, indirect discrimination cases require the application of a comparative exercise. However, in indirect discrimination claims the comparison is between one group of employees (ie those who share the protected characteristic) and another group (ie those without that protected characteristic). Those in the latter group may be different from the employee's group who share the protected characteristic provided that there is not a "material difference" (s.23(1)).

Unlike direct discrimination, indirect discrimination is not unlawful if the employer is able to justify the application of the disadvantageous PCP.

The definition of "employment, under s.83(2) of the Equality Act 2010, is broader than the employment definition used for unfair dismissal and other employment claims. This means that the use of "employee" in this section should be read as including workers, apprentices, etc.