Being treated differently because of your gender, race, religion, age, or sexual orientation – or because you are pregnant, on family-related leave, or have a disability – is illegal. But what happens when a practice at work, which applies to everyone, has a negative impact on one particular group of people?

If this is the case then this could be indirect discrimination.

Conflicting judgements in the Employment Appeal Tribunal and the Court of Appeal in recent years have resulted in a system where it was unclear what an employee in a particular group had to show to establish if they had actually suffered Indirect discrimination.

In the joined cases of Essop and others v Home office and Naeem v Secretary of State for Justice the Supreme Court has now cleared this up.

In both cases the Court of Appeal had decided that an employee had to show not only that there was a practice or provision being applied that caused them a particular disadvantage but also why the disadvantage arose in the first place (decisions that were contrary to all previous cases before them). 

Fortunately, now the decision of Baroness Hale in the Supreme Court has overturned this and put matters back on an even keel.

In these welcome judgements, the Supreme Court has clarified the law relating to Indirect discrimination and confirmed that in both cases it is not necessary for an employee to establish the reason behind the particular disadvantage, just that one group may find it harder to comply with the potentially discriminatory practice. 

Even then, as Baroness Hale explained, the practice doesn’t need to put every single member of the group at a disadvantage, just that there are statistical context factors which can show that the seemingly neutral practice by the employer could amount to discrimination indirectly.

Once the suspicion of a potentially indirect discriminatory practice is established, the focus then moves to whether the practice is unlawful by requiring the employer to justify the practice.

As Baroness Hale puts it, there is “no shame” in justifying a particular practice and sufficient justification for the practice could in some cases render it lawful for the right reasons. In essence, all employers should keep a close eye on their policies and procedures for any statistical discrepancy which might be used to support a claim for indirect discrimination. 

Discrimination is a complex area of employment law and if you run a business and are worried about a practice you are applying, or you believe that there is a practice being applied at work that is potentially discriminatory, you should seek legal assistance and speak to our Employment law Solicitor Pauline Del Monaco on 01254 872272