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Home > Commercial > Direct and indirect discrimination in the workplace – What is the difference?
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Discrimination in the workplace is an often misunderstood area of employment law.
Employers have a legal duty to ensure that their policies, procedures, and workplace culture do not unlawfully disadvantage employees based on protected characteristics.
There are several types of discrimination claims that employees can bring and two of the most common are direct and indirect discrimination. Understanding the distinction between direct and indirect discrimination is required to avoid legal risks and establish a fair working environment.
Direct discrimination occurs when an individual is treated less favourably because of a protected characteristic, as outlined in the Equality Act 2010 .
The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
Key elements of direct discrimination:
Examples of direct discrimination:
There are very few legal defences available to employers for direct discrimination, except in limited circumstances such as occupational requirements (e.g., requiring an actor for a specific gender role in a play) or where a claim relates to age and can be objectively justified.
An example of objective justification would be if a 17-year-old working day shifts applies to work a night shift. The employer can objectively justify refusing this application for a night shift because the legal minimum age for night work is 18 years old, and the employer must follow the law.
Indirect discrimination arises when a policy, practice, or criterion that applies to all employees disproportionately disadvantages individuals with a particular protected characteristic.
Key elements of indirect discrimination:
Examples of indirect discrimination:
Unlike direct discrimination, employers can justify indirect discrimination if they can demonstrate that the policy serves a legitimate business aim and is a proportionate means of achieving that aim.
While direct discrimination has very limited defences, employers may be able to defend claims of indirect discrimination by showing that:
To mitigate the risk of discrimination claims and promote an inclusive workplace, employers should:
Discrimination claims can result in reputational and financial consequences for businesses.
Employers must understand the distinctions between direct and indirect discrimination to ensure compliance with the Equality Act 2010 .
By proactively reviewing workplace policies and creating an inclusive environment, businesses can minimise legal risks while promoting equality in the workplace.
For further advice on ensuring your policies are legally compliant and non-discriminatory, contact our employment law solicitors today.
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