Direct and indirect discrimination in the workplace – What is the difference?

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.

What is direct discrimination?

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:

• The treatment must be less favourable than that given to another person in similar circumstances. This is known as a comparator.
• The treatment must be because of a protected characteristic.
• There is generally no requirement to prove intention – even unintended direct discrimination is unlawful.

Examples of direct discrimination:

• Refusing to promote an employee because they are pregnant.
• Dismissing an employee because they have undergone gender reassignment.
• Paying a female employee less than a male counterpart for the same job without justification.
• Telling an employee who is gay to not talk about their personal life at work whilst not upholding the same standard for any heterosexual employee

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.

What is indirect discrimination?

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:

• The employer applies a provision, criterion, or practice (PCP) to all employees.
• The PCP puts or would put individuals sharing a protected characteristic at a particular disadvantage.
• The PCP cannot be justified as a proportionate means of achieving a legitimate aim.

Examples of indirect discrimination:

• Requiring all employees to work full-time may disproportionately disadvantage women, who are statistically more likely to have caring responsibilities.
• Implementing a uniform policy that bans head coverings without accommodation for religious beliefs.
• Requiring a minimum number of years’ experience for a job, which may disadvantage younger applicants.

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.

Legal defences for employers

While direct discrimination has very limited defences, employers may be able to defend claims of indirect discrimination by showing that:

• The policy serves a legitimate aim – The employer must show that the PCP was implemented for a genuine business reason, such as ensuring health and safety or maintaining operational efficiency.
• The policy is proportionate – Even if the aim is legitimate, the means of achieving it must be proportionate. Employers should consider whether a less discriminatory alternative could achieve the same goal.
• Reasonable adjustments have been considered – In the case of disability discrimination, employers have a legal duty to make reasonable adjustments to accommodate affected employees.

How can employers ensure fair and lawful policies?

To mitigate the risk of discrimination claims and promote an inclusive workplace, employers should:

• Conduct equality impact assessments – Before implementing workplace policies, assess whether they could disproportionately affect certain groups.
• Offer flexibility where possible – Providing part-time work, job-sharing, and remote working can help avoid indirect discrimination claims.
• Provide diversity and inclusion training – Ensure that managers understand discrimination laws and how to apply them in practice.
• Review policies regularly – Workplace policies should be updated periodically to reflect changes in legislation and best practice.
• Seek legal advice – If there is any doubt about whether a policy could be discriminatory, employers should seek legal guidance before implementation.

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.