Changes to who can claim indirect discrimination

Ben Stepney explains to People Management how employers should react to the broadening of protection.

There has been a flurry of new regulations amending employment law in the last few months: plenty to keep employers on their toes. One change that mostly went under the radar was a potentially wide extension of the pool of claimants who can claim indirect discrimination and the circumstances in which they might do so.

This heightened legislative activity was partly down to the change in the impact of EU law on UK law that took place overnight on 31 December 2023. The Retained EU Law (Revocation and Reform) Act ended the supremacy of EU law in the UK, reversing what had been the position for the last 50 years – all part of post-Brexit implementation. The end of supremacy of EU law means that UK appeal courts can disregard EU case law, as well as UK cases that have been influenced by European cases.

In respect of protection from unlawful discrimination in the workplace, the government amended the Equality Act 2010 to incorporate a number of discrimination protections that were based on EU law. The intention was not to change the law, but to clarify and ensure that existing protection from unlawful discrimination was not lost. But one effect of this is to broaden discrimination protection.

Indirect discrimination

In summary, indirect discrimination is concerned with acts or policies that apply to all people equally, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic. Where such an act or policy disadvantages an employee with that characteristic, it will amount to indirect discrimination, unless it can be objectively justified by the employer.

For example, a requirement to work full time, in rejection of a part-time working request by a woman with childcare responsibilities, would be indirect discrimination against that woman. The requirement disadvantages women compared to men, as women disproportionately have more childcare responsibilities.

A man with similar childcare responsibilities who was treated in the same way would not have been able to claim indirect discrimination. But the change to the Equality Act, effective from 1 January 2024, allows an individual who has the same disadvantage as suffered by those with a protected characteristic to claim indirect discrimination, even though they do not have that protected characteristic.

This opens the door, for example, to a man with primary carer responsibilities to claim indirect discrimination where the requirement to work full time puts him at the same disadvantage.

This change implements the 2015 European Court of Justice ruling in Chez. While the principle in that case was in theory binding on UK tribunals, there was uncertainty about how UK tribunals would apply this, given that it contradicted the Equality Act. Such uncertainty may have put claimants off from bringing such claims. But the change clarifies the position and the Chez decision now forms part of the Equality Act.

Another example could be an employee with a health condition that does not meet all of the conditions of the Equality Act to be a qualifying disability. Previously that would bar them from claiming any form of disability discrimination. Now they could claim protection if they can show that they suffered the same disadvantage as someone with a similar health condition that did qualify as a disability.

Advice for employers

It will not always be easy to spot where a policy might be indirectly discriminatory. A takeaway for employers is to continue to ensure that policies and decisions made under them are well thought through from both sides’ points of view and documented, all with support from HR.

Most indirect discrimination cases are won or lost at the objective justification stage. That is, an indirectly discriminatory policy can still be lawful if it can be shown to be a proportionate means of achieving a legitimate aim. Businesses should therefore ensure that they are clear in their decision making about the legitimate aim(s) the policy is advancing. They then need to be able to show that the policy is a proportionate means of achieving that aim. This will always require a consideration of other means of achieving that aim and documenting why such alternatives were dismissed.

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