Scope of indirect discrimination extended
Blog
At the start of 2024, The Equality Act 2010 (Amendment) Regulations 2023 (the Amendment Regulations) came into force, bringing with them a potential widening of the scope of indirect discrimination claims.
Previously, to claim indirect discrimination, a claimant had to share the same protected characteristic as the group being placed at a disadvantage. Now, the amended Equality Act 2010 permits someone without the same protected characteristic to make a claim for indirect discrimination if they can show:
- There is a Provision Criterion or Practice (PCP) (eg a policy or rule) which is applied or would apply to them, and which puts a group of people who share the same protected characteristic at a particular disadvantage, and
- The claimant suffers substantially the same disadvantage as the group, even if they do not themselves share the same protected characteristic.
- Indirect discrimination can still be justified if the application of the PCP is a proportionate means of achieving a legitimate aim.
What prompted this change?
As a result of the Retained EU Law (Revocation and Reform) Act 2023, which came into force on 1 January 2024, domestic courts are now permitted to depart from EU case law. In broad terms, the Government introduced the Amendment Regulations to ensure that various European Court of Justice decisions on discrimination continue to apply in the UK after this date.
One such decision is the 2015 case of CHEZ Razpredelenie Bulgaria (commonly referred to as CHEZ for short).
In CHEZ, the Claimant, who is not Roma, lived in a district of Bulgaria with a majority Roma population. The electricity supplier for the Claimant’s district installed electricity meters at heights which made it very difficult for the meters to be checked, whereas in other districts they installed meters which were much more accessible and could be checked easily. The Claimant argued that this amounted to indirect race discrimination, because the electricity supplier followed the practice of installing inaccessible meters in her district due to its belief that Roma people would otherwise tamper with the meters. The Claimant argued that she was placed at a disadvantage by this practice, even though she herself was not Roma, because she was also unable to check her electricity consumption.
The Court found for the Claimant, and established that where a PCP puts a group with a protected characteristic at a disadvantage, a person without the protected characteristic who is put at a comparable disadvantage by the PCP may claim indirect discrimination.
Although the CHEZ decision has never been applied by the UK courts, the effect of the Amendment Regulations is that the decision has now been put on a legislative footing, and as such must be followed by the UK courts.
What is the practical impact of this change?
As this change is so recent, we will need to see how Employment Tribunals apply the legislation in order to understand what the full impact might be. It seems likely, however, that the change will widen the pool of candidates who can make a claim for indirect discrimination. Consider for example the following:
- An employer has a policy of refusing flexible working requests. This PCP puts women at a particular disadvantage based on the childcare disparity (which recognises that women have greater childcare responsibilities and are less likely to be able to comply with certain working arrangements than men: see here for more information). Following the Amendment Regulations, a man with childcare responsibilities whose flexible working request is refused who suffers substantially the same disadvantage as women as a result of the policy of refusing flexible working requests could also bring a claim for indirect discrimination.
- Only employees who have health conditions which meet the definition of disability under the Equality Act are protected from disability discrimination. Could someone with a health condition which does not meet this definition now claim indirect discrimination if the employer’s PCP is applied to them and they suffer substantially the same disadvantage because of the PCP (such as an absence management policy, for example) as someone who does qualify as having a disability? Given that the disadvantage suffered must be “substantially the same”, one potential argument for employers is likely to be that the disadvantage is not as substantial for non-disabled as for disabled employees.
- If evidence shows that certain ethnic minorities are less likely to be successful in a recruitment assessment (as in the case of Essop and others v Home Office), could someone from a different ethnic group claim indirect race discrimination if they suffer substantially the same disadvantage? Again, arguments about how substantial the disadvantage is are likely to be key.
Advice for employers
This is a potentially significant change, since it may give rise to increased claims by individuals not traditionally thought of as belonging to a group who share a protected characteristic. Increasingly, when implementing policies and procedures, employers will need to be mindful of the potential impact on the wider workforce, not just those with protected characteristics. This is particularly important because it remains the case that employers may defend, and so avoid liability for, indirect discrimination if they can show that a PCP was a proportionate means of achieving a legitimate aim.
In the recent case of Minis Childcare Ltd v Hilton-Webb, the Employment Appeal Tribunal confirmed the different elements needed in order to establish the justification defence for indirect discrimination, including the need for the Respondent to prove i) the aim they are seeking to achieve and ii) that the PCP was a means of achieving that aim. It is then for the Tribunal to decide whether the aim is legitimate and whether the adoption of the PCP was proportionate to achieve that aim.
For more information about objectively justifying employment decisions, see our blog: Justifying indirect discrimination. The main takeaways are that, when putting in place actions that will impact the workforce, employers should:
- Be clear about the business reasons for the action,
- Ensure that the measures being introduced contribute to those,
- Assess whether there are less intrusive measures which could be used instead, and
- Keep a record of the decision-making process in case it is subsequently challenged.
While this approach has always been good employment practice to protect against potential indirect discrimination claims, the imperative for doing so has now increased.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, July 2024