Indirect discrimination
Sunday, 10 October 2021 13:41
Examples of indirect discrimination:
- 'Aged 18-30'
○ Prince v Civil Service Commission (No. 2) [1978] IRLR 3 (IT)
○ Jones v University of Manchester [1993] ICR 474 (CA)
- 'Local experience'
○ Meer v London Borough of Tower Hamlets [1988] IRLR 399 (CA)
- 'Good command of English'
○ Perera v Civil Service Commission (No. 2) [1983] ICR 428 (CA)
- 'Management experience'
○ Falkirk Council v Whyte [1997] IRLR 560 (EAT)
- 'Last in first out' redundancy selection
○ Brook v Haringey LB [1992] IRLR 478 (EAT)
○ Hall v Shorts Missile Systems [1996] NI 214 (NICA)
- Length of Service pay scale
○ Naeem v Secretary of State for Justice [2017] UKSC 27
History of indirect discrimination
- Began in the United States with the Civil Rights Act 1964 making it unlawful to 'discriminate'
Griggs v Duke Power 401 US 424 (1971)
○ Powerplant divided into 5 departments
○ The labour segment was the dirtiest and had the lowest paid jobs
○ Out of 95 employees at the plant, 14 were black
○ There were only 14 workers in the labour department, and all 14 black workers made up
that workforce
○ No evidence of direct discrimination
○ To work at the other departments you were required to have a high school diploma
○ Only 12% of black people completed high school in the area - compared to 32% of white
people
○ Brought a claim for indirect discrimination in terms of the high school diploma
requirement - Supreme Court agreed
The elements of indirect discrimination
- Equality Act 2010, s. 19
○ A person (A) discriminates against another (B) if they apply a provision, criterion or
practice which is discriminatory in relation to a relevant protected characteristic of B's
○ For the purposes of subsection 1, a provision, criterion or practice is discriminatory in
relation to a protected characteristic if;
▪ A applies or would apply it to persons with whom B does not share the
characteristic
▪ It puts or would put persons whom B shares the characteristic at a particular
disadvantage when compared with persons whom B does not share the
characteristic
▪ It puts or would put B at that disadvantage
▪ A cannot show it to be a proportionate means of achieving a legitimate aim
In short:
1. A provision, criterion or practice (PCP)
2. Which puts or would put
3. The claimant and the claimant's group at a particular disadvantage
4. With no justification
Equality Law Page 1
Sunday, 10 October 2021 13:41
Examples of indirect discrimination:
- 'Aged 18-30'
○ Prince v Civil Service Commission (No. 2) [1978] IRLR 3 (IT)
○ Jones v University of Manchester [1993] ICR 474 (CA)
- 'Local experience'
○ Meer v London Borough of Tower Hamlets [1988] IRLR 399 (CA)
- 'Good command of English'
○ Perera v Civil Service Commission (No. 2) [1983] ICR 428 (CA)
- 'Management experience'
○ Falkirk Council v Whyte [1997] IRLR 560 (EAT)
- 'Last in first out' redundancy selection
○ Brook v Haringey LB [1992] IRLR 478 (EAT)
○ Hall v Shorts Missile Systems [1996] NI 214 (NICA)
- Length of Service pay scale
○ Naeem v Secretary of State for Justice [2017] UKSC 27
History of indirect discrimination
- Began in the United States with the Civil Rights Act 1964 making it unlawful to 'discriminate'
Griggs v Duke Power 401 US 424 (1971)
○ Powerplant divided into 5 departments
○ The labour segment was the dirtiest and had the lowest paid jobs
○ Out of 95 employees at the plant, 14 were black
○ There were only 14 workers in the labour department, and all 14 black workers made up
that workforce
○ No evidence of direct discrimination
○ To work at the other departments you were required to have a high school diploma
○ Only 12% of black people completed high school in the area - compared to 32% of white
people
○ Brought a claim for indirect discrimination in terms of the high school diploma
requirement - Supreme Court agreed
The elements of indirect discrimination
- Equality Act 2010, s. 19
○ A person (A) discriminates against another (B) if they apply a provision, criterion or
practice which is discriminatory in relation to a relevant protected characteristic of B's
○ For the purposes of subsection 1, a provision, criterion or practice is discriminatory in
relation to a protected characteristic if;
▪ A applies or would apply it to persons with whom B does not share the
characteristic
▪ It puts or would put persons whom B shares the characteristic at a particular
disadvantage when compared with persons whom B does not share the
characteristic
▪ It puts or would put B at that disadvantage
▪ A cannot show it to be a proportionate means of achieving a legitimate aim
In short:
1. A provision, criterion or practice (PCP)
2. Which puts or would put
3. The claimant and the claimant's group at a particular disadvantage
4. With no justification
Equality Law Page 1
