Reinforcing my employment law knowledge is a key professional priority. There is plenty to keep me busy.
The recent amendments to employment law have broadened the scope of who can claim indirect discrimination in the UK and the circumstances in which they might do so.
Indirect discrimination
Indirect discrimination refers to policies or practices that, while appearing neutral, in practice, disproportionately disadvantage individuals with certain protected characteristics. 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.
Indirect discrimination will not be deemed unlawful under the Equality Act 2010 if an organisation/person can show that there was a good enough reason for applying a particular provision, criterion or practice. This is called the objective justification defence.
Previously, only individuals with a protected characteristic could claim indirect discrimination, but now, changes 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.
For example, a man with primary caregiver responsibilities can now claim indirect discrimination if a policy, such as a full-time work requirement, puts him at the same disadvantage as women with childcare responsibilities.
Who can claim indirect discrimination?
As ever, policy underpins practice. However, in this instance, it is not easy to forecast where a policy might be inadvertently discriminatory. . It’s crucial to recognise that a ‘policy’ extends beyond mere documentation; it encompasses “provision, criterion, or practice” (PCP), such as rules, arrangements, or workplace practices.
This policy case in particular, highlights the importance of effective policy practice: identification of need, research, drafting, consultation and feedback, the approval process, communication to stakeholders, implementation, monitoring and evaluation, compliance, review and revision.
Here, employers need to be clear in their decision making about the legitimate aim(s) the policy is advancing and be able to to show that the policy is a proportionate means of achieving that aim.
Evidence of engaging with employees or representative groups, to understand potential impacts of the revisions (and making necessary adjustments), is clear relevant here.
One final professional reflection – as policy writer, as well as including the revisions, I have started to document the revisions not included in the policy, and why such alternatives were dismissed.