The Equality Act 2010 - Indirect discrimination

Learning Outcomes

This article examines indirect discrimination under the Equality Act 2010, including:

• Legal definition of indirect discrimination
• The four elements required to establish a claim
• The proportionality and justification test
• Distinctions between indirect and direct discrimination
• Practical scenarios, employer obligations, and available defences relevant to SQE1 assessment
• Selection of an appropriate pool for comparison
• Assessment of “particular disadvantage”
• The burden-shifting framework under s.136 Equality Act 2010
• Less discriminatory alternatives to achieve the same legitimate aim

SQE1 Syllabus

For SQE1, you are required to understand the concept of indirect discrimination as set out in the Equality Act 2010, including its definition, the elements required to establish a claim, and the available defences, with a focus on the following syllabus points:

• the meaning of a provision, criterion or practice (PCP)
• the protected characteristics to which indirect discrimination applies
• the four-stage test for establishing indirect discrimination
• the justification defence and the proportionality test
• practical examples of indirect discrimination in employment and service provision
• the burden of proof and the role of comparators
• the concept of “particular disadvantage” and how to select the appropriate pool for comparison
• distinctions between indirect discrimination and other routes (e.g., discrimination arising from disability under s.15 and the reasonable adjustments duty)

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the four elements a claimant must prove to establish indirect discrimination under the Equality Act 2010?
2. Can an employer defend a claim of indirect discrimination? If so, how?
3. Give an example of a workplace policy that could amount to indirect discrimination unless justified.
4. Which protected characteristics are covered by the indirect discrimination provisions of the Equality Act 2010?

Introduction

Indirect discrimination is a key concept in the Equality Act 2010. It addresses situations where a policy or rule, applied equally to everyone, has a disproportionate negative effect on people who share a particular protected characteristic. Unlike direct discrimination, which is about less favourable treatment because of a characteristic, indirect discrimination is about the impact of apparently neutral requirements.

It focuses on effects rather than motive. The claim can succeed even when the decision-maker had no intention to discriminate and believed the policy was fair. The law recognises that uniform requirements can still exclude or burden particular groups. Indirect discrimination is actionable in employment and in the provision of services and public functions. Importantly, the Equality Act builds in a balancing mechanism: even where disadvantage is shown, the respondent can avoid liability if the PCP is a proportionate means of achieving a legitimate aim.

Key Term: provision, criterion or practice (PCP)
Any policy, rule, requirement, arrangement, or habitual way of doing things—formal or informal—applied to employees, clients, or service users. A PCP can arise from written policies, unwritten rules, standard operating procedures, one-off decisions that indicate a broader practice, or eligibility criteria.

Key Term: indirect discrimination
Applying a PCP that disadvantages a group sharing a protected characteristic and personally disadvantages the claimant, and which cannot be objectively justified as a proportionate means of achieving a legitimate aim.

Protected Characteristics

Indirect discrimination applies to the following protected characteristics under the Equality Act 2010:

• age
• disability
• gender reassignment
• marriage and civil partnership (in employment only)
• race
• religion or belief
• sex
• sexual orientation

Note: Pregnancy and maternity are not covered by s.19 (indirect discrimination), but are protected by specific provisions (e.g., s.18 pregnancy and maternity discrimination) and by direct discrimination principles. Marriage and civil partnership is protected under the indirect discrimination provisions only in the employment field.

What is Indirect Discrimination?

Indirect discrimination occurs when an organisation applies a PCP to everyone, but that PCP puts people with a particular protected characteristic at a particular disadvantage compared to others, and the PCP cannot be justified.

A PCP need not be written down or formally adopted; unwritten customs or habitual practices can suffice. A PCP can also be prospective: a requirement that “would put” a group at a disadvantage if implemented is within scope. The identification of the PCP is important. Tribunals expect a clear articulation of the rule or practice being challenged and an explanation of the pool of people to whom it is applied. Whether a practice is genuinely “neutral” does not prevent scrutiny; neutrality on its face does not preclude a disparate impact in practice.

Key Term: particular disadvantage
A real and not merely trivial disadvantage suffered by a group with a protected characteristic and by the claimant. It may be qualitative (e.g., inability to comply, loss of opportunity) or quantitative (e.g., lower pass rates). The cause of the disadvantage does not need to be proved; evidence of the disparity is sufficient.

Key Term: pool for comparison
The group of people to whom the PCP is applied, used to assess whether those with the protected characteristic are disadvantaged compared to others. Selecting the correct pool (often those affected or eligible under the PCP) is essential; it should reflect the actual context in which the PCP operates.

Protected Characteristics​

Indirect discrimination applies broadly across protected characteristics, including age, disability, gender reassignment, marriage and civil partnership (employment only), race, religion or belief, sex, and sexual orientation. Claims can arise in employment (e.g., rostering, promotion criteria) and in service provision (e.g., admission requirements). For disability, indirect discrimination sits alongside two additional mechanisms: discrimination arising from disability (s.15) and the reasonable adjustments duty. Under s.15, unfavourable treatment “because of something arising in consequence of” disability can be justified if proportionate to a legitimate aim, and dutyholders must know (or be expected to know) of the disability. These distinct routes often interact where a PCP disproportionately affects disabled persons.

The Four-Stage Test

To establish indirect discrimination, a claimant must show:

1. A PCP is applied: The organisation applies a PCP to everyone.
2. Group disadvantage: The PCP puts, or would put, people sharing the protected characteristic at a particular disadvantage compared to others.
3. Personal disadvantage: The claimant personally suffers that disadvantage.
4. No justification: The organisation cannot show the PCP is a proportionate means of achieving a legitimate aim.

Each limb deserves attention:

• PCP: Identify the rule or practice precisely. It may include criteria like minimum service length, specific qualifications, set hours, language requirements, or dress codes. One-off decisions can sometimes amount to a PCP if they reflect or establish a practice.

• Group disadvantage: Establish the correct comparison pool (being those to whom the PCP applies). The claimant does not need to prove why the disadvantage arises; it is enough to show that it does. Statistical evidence can assist but is not mandatory; tribunals can infer disadvantage from patterns and common-sense evidence.

• Personal disadvantage: The claimant must show they are affected in the same way as the disadvantaged group—for instance, rejection from promotion, inability to meet hours, or disciplinary action for non-compliance.

• Justification: The respondent bears the burden of showing a legitimate aim and that the PCP is proportionate. This requires evidence of the real objective and careful consideration of alternatives.

Worked Example 1.1

A law firm requires all fee earners to work full-time in the office, Monday to Friday, 9am–6pm. Is this policy potentially indirectly discriminatory?

Answer:
Yes. The PCP (full-time office hours) applies to all. It may disadvantage women as a group, as they are statistically more likely to have childcare responsibilities. If a female solicitor cannot comply due to childcare and is penalised, she suffers personal disadvantage. The firm must then justify the policy as a proportionate means of achieving a legitimate aim (e.g., business need). If flexible working would achieve the same aim, the policy may be unlawful.

Group and Personal Disadvantage

The claimant must show that the PCP puts a group sharing the protected characteristic at a disadvantage compared to others, and that they personally suffer that disadvantage. Statistical evidence is often used, but is not always required. Tribunals evaluate the evidence in context. General data (e.g., national statistics) can be relevant, but the most persuasive evidence is often drawn from the actual workplace or service environment.

Selecting the pool for comparison is key. The pool should normally comprise those subject to the PCP, such as all applicants for a promotion or all employees in a department to whom a shift pattern is applied. A pool that is too wide or too narrow can distort the analysis. For example, if a test is required to progress to a role, the pool is those who take or are required to take the test, not the entire workforce. The disadvantage must be “particular” rather than minor. It encompasses practical barriers (cannot comply), detriments (missing opportunities), or penalties (disciplinary measures).

Key Term: comparator
A person in the same situation as the claimant but who does not share the protected characteristic. In indirect discrimination, the primary focus is on group disadvantage rather than identifying a single comparator. A hypothetical comparator may be used if no actual comparator is available.

A common point of confusion is whether the claimant must explain the reasons for the group’s disadvantage. UK law does not require proof of causation for the disparity; the existence of the disparate impact is sufficient, provided that the PCP is the source of the disadvantage. This allows tribunals to focus on the fairness and necessity of the PCP rather than engaging in debates about the causes of statistical patterns.

Justification and the Proportionality Test

Even if the claimant establishes group and personal disadvantage, the organisation can defend the claim by showing the PCP is a proportionate means of achieving a legitimate aim.

Key Term: proportionate means of achieving a legitimate aim
The PCP must be appropriate and necessary to achieve a real business or organisational objective. The respondent must show that the aim is sufficiently important, that the PCP is rationally connected to the aim, that less discriminatory measures were considered and would not achieve the aim, and that the benefits of the PCP outweigh the discriminatory impact.

Key Term: legitimate aim
A genuine business or organisational objective, such as health and safety, safeguarding, efficiency, service delivery, maintaining standards, or workforce planning. Pure cost-saving or administrative convenience alone will rarely suffice; financial considerations can be relevant when combined with other legitimate objectives.

The proportionality analysis is evidence-based. The respondent should specify the aim clearly and explain why the PCP is needed. Consideration of alternatives is important: could the objective be met by adjustments (e.g., flexible hours, different criteria, reasonable adjustments for disabled persons), targeted exemptions, or phased requirements? Where the PCP has significant adverse impact, the respondent must demonstrate a fair balance between the impact on the protected group and the importance of the aim. For age discrimination, even direct discrimination may sometimes be justified if proportionate to a legitimate aim. For disability, separate routes exist alongside indirect discrimination (s.15 discrimination arising from disability, and the reasonable adjustments duty), each with its own justification framework.

Worked Example 1.2

A retailer requires all staff to speak fluent English. A job applicant whose first language is not English is rejected. Is this indirect discrimination?

Answer:
The PCP (fluent English requirement) applies to all. It may disadvantage people of certain nationalities. If the applicant is personally disadvantaged, the retailer must justify the requirement. If the job involves only basic communication, the requirement may not be proportionate. If the role involves complex customer interaction, it may be justified.

Exam Warning

Indirect discrimination can arise even if there is no intention to discriminate. The focus is on the effect of the PCP, not the motive behind it. Always check the correct pool for comparison; a misidentified pool can lead to the wrong conclusion. Showing why the disadvantage occurs is not required—only that it occurs and is linked to the PCP.

Burden of Proof

The claimant must establish facts from which a tribunal could conclude that indirect discrimination has occurred. If this is done, the burden shifts to the respondent to justify the PCP.

The statutory framework in s.136 Equality Act 2010 governs the burden of proof. In practice:

• The claimant shows the PCP, the appropriate pool, and evidence of particular disadvantage to the group and themselves.
• If the tribunal could infer discrimination from these facts, the respondent must prove that the PCP is a proportionate means of achieving a legitimate aim.
• Evidence may include policy documents, risk assessments, business cases, and records of how alternatives were considered. General assertions are unlikely to be sufficient.

Key Term: burden of proof
Under s.136 Equality Act 2010, once facts are established from which discrimination could be inferred, the burden shifts to the respondent to prove that there was no discrimination or that the PCP is justified.

Worked Example 1.3

A company requires all employees to be clean-shaven. A Sikh man, whose faith requires him to keep a beard, is disciplined for non-compliance. Is this indirect discrimination?

Answer:
The clean-shaven policy is a PCP. It disadvantages Sikhs as a group, and the claimant personally. The company must justify the policy. Unless there is a strong health or safety reason, it is unlikely to be proportionate.

Practical Examples

• Dress codes: Banning head coverings may disadvantage Muslim women or Sikh men. Unless linked to genuine safety or security aims and implemented proportionately (e.g., suitable alternatives), such bans are likely unlawful.
• Working hours: Requiring work on Saturdays may disadvantage Jewish employees who observe the Sabbath. An employer should consider alternative scheduling or job adjustments where feasible.
• Physical requirements: Imposing strict fitness standards may disadvantage older or disabled people. Health and safety aims may be legitimate, but standards must be objectively tied to job requirements and reasonable adjustments considered.
• Length of service pay progression: Linking pay or promotion to long service may disadvantage groups who historically entered the workforce later (e.g., certain religious chaplains). Legitimate aims like retention or experience may be valid, but the approach must be proportionate.
• Qualification requirements: A requirement for a particular advanced degree for promotion may disadvantage older workers if acquiring it late in a career is unduly burdensome. Alternatives such as equivalent experience or modular learning may reduce the discriminatory impact.
• Language policies: Requiring “native-level” fluency may disadvantage certain nationalities. If customer safety or complex advice is involved, high proficiency may be justified, but a blanket “native” requirement is rarely proportionate.

Defending a Claim

To defend a claim, the organisation must show:

• The aim is legitimate (e.g., safety, safeguarding, regulatory compliance, service quality, workforce planning).
• The PCP is proportionate—no less discriminatory alternative is available that would achieve the aim with comparable effectiveness.

Defences succeed when supported by robust evidence of need and consideration of alternatives. Points to consider:

• Define the aim precisely and demonstrate its importance. Vague aims like “efficiency” need concrete explanation.
• Show a rational connection: how does the PCP further the aim? Evidence may include risk assessments, incident reports, compliance requirements, customer feedback, or performance data.
• Consider alternatives and reasonable adjustments: Could the aim be achieved with targeted exemptions, phased implementation, competency assessments instead of formal qualifications, or flexible rostering? For disability, the duty to make reasonable adjustments is a distinct legal requirement; failure to consider adjustments undermines justification.
• Avoid reliance on cost alone: financial constraints can be relevant but are rarely decisive by themselves. Cost may be a factor within a wider assessment (e.g., maintaining minimum staffing for safety) but must be balanced against discriminatory impact.

Revision Tip

When considering justification, always ask: Is the aim real and important? Is the PCP necessary? Could the aim be achieved in a less discriminatory way? Evidence beats assertion. Document risks, regulatory needs, alternatives considered, and reasons for rejecting them. For disability, check reasonable adjustments first; for age, bear in mind that even direct discrimination may sometimes be justified if proportionate.

Worked Example 1.4

A public authority requires all customer service staff to work one late evening each week to serve working citizens. A Muslim employee requests exemption during Ramadan due to evening prayers and fatigue. The request is refused and disciplinary action is taken. Indirect discrimination?

Answer:
The PCP (mandatory late evening work) applies to all and may disadvantage Muslims observing Ramadan. The claimant is personally disadvantaged. The authority must justify the PCP. Serving the public outside normal hours is a legitimate aim, but proportionality requires exploring alternatives (e.g., swap shifts, temporary reallocation during Ramadan, voluntary cover). If flexible arrangements could meet the aim without significant detriment, refusal is unlikely to be proportionate.

Worked Example 1.5

A firm introduces a policy that only solicitors with a postgraduate degree can be promoted to Senior Associate. A 59-year-old solicitor with extensive experience but no postgraduate degree is denied promotion. Indirect discrimination on grounds of age?

Answer:
The PCP (postgraduate degree requirement) applies to all. It may disadvantage older solicitors who face greater burdens in obtaining the degree mid- or late-career. The claimant is personally disadvantaged. The firm must justify the PCP. If the aim is ensuring advanced competencies, consider whether equivalent experience or alternative assessment could achieve the aim. If such alternatives are viable, the rigid degree requirement may not be proportionate.

Defending a Claim in Service Provision

Indirect discrimination also applies to service providers, including legal services. Providers must not set terms or adopt practices that disadvantage protected groups unless justified. For example, insisting all clients attend in-person meetings during weekday working hours may disadvantage disabled clients with mobility issues or clients with religious observances. Reasonable adjustments (e.g., video meetings, accessible premises, sign language services) are legally required for disabled clients; costs cannot be passed on to them. Assess PCPs governing access, eligibility, and delivery and document the rationale and alternatives considered.

Key Point Checklist

This article has covered the following key knowledge points:

• Indirect discrimination occurs when a PCP disadvantages a group with a protected characteristic and cannot be justified.
• The four-stage test: PCP, group disadvantage, personal disadvantage, and lack of justification.
• The claimant need not prove the cause of the disadvantage; showing the existence of disadvantage and personal impact is sufficient.
• Selecting the correct pool for comparison is essential to evaluating “particular disadvantage.”
• Justification requires the PCP to be a proportionate means of achieving a legitimate aim; pure cost-saving rarely suffices.
• The burden of proof shifts to the respondent under s.136 once the claimant establishes a prima facie case.
• Indirect discrimination applies to most protected characteristics; pregnancy and maternity are covered by other provisions, and marriage/civil partnership applies in employment only.
• In disability cases, consider s.15 discrimination arising from disability and the separate duty to make reasonable adjustments.
• Practical examples include dress codes, working hours, language and qualification requirements, and length-of-service policies.
• Service providers must ensure access and delivery practices do not unlawfully disadvantage protected groups.

Key Terms and Concepts

• provision, criterion or practice (PCP)
• indirect discrimination
• particular disadvantage
• pool for comparison
• comparator
• proportionate means of achieving a legitimate aim
• legitimate aim
• burden of proof