What is an Unfair Disadvantage in England and Wales?

As an employer, you are likely aware that you must not discriminate against your employees. Discrimination is treating another person less favourably. For example, you might decide not to give a certain employee a job or pay them less than another worker without sound reason. Likewise, your decision to treat a particular person less favourably is based on personal characteristics, such as religion, race, or sex. This is a direct form of unlawful discrimination. 

However, it is also possible for an employer to discriminate without necessarily intending to do so. This is indirect discrimination. An example is where your working conditions put a group of people at an unfair disadvantage due to their personal characteristics. This article will explain what is meant by indirect discrimination resulting in an unfair disadvantage at work. It gives examples of how this may occur and describes where your actions may appear to be indirect discrimination but are actually done with good reason and, therefore, justified. 

What is an Unfair Disadvantage?

An unfair disadvantage in employment is where a group of people are indirectly discriminated against because of a condition affecting all, or a group of people. Subsequently, this condition (like a policy or workplace practice) puts them at a disadvantage to other employees. 

For example, suppose you decide to reward your staff with a performance-related pay scheme. Your female employees may claim this puts them at an unfair disadvantage because it indirectly discriminates against them. The argument may be that they are more likely to take leave, such as maternity leave. In this instance, it does not matter that you do not intend to discriminate against them. Indeed, it may still be a form of indirect discrimination that puts certain works at an unfair disadvantage.

How Do You Prove Indirect Discrimination?

Additionally, there are four requirements for an employee to demonstrate when alleging that you are indirectly discriminating against them and, therefore, putting them at an unfair disadvantage. Your action must:

1. affect either all employees or a group of them;
2. cause a group with a protected characteristic to be disadvantaged;
3. have caused or will cause a disadvantage; and
4. have no justifiable business reason for being in place.

How Might an Employer Put Another at an Unfair Disadvantage?

As an employer, you should not directly or indirectly discriminate against another. While direct discrimination may be obvious to identify, it is still crucial to understand its meaning. It involves internationally treating another less favourably based on one of the following protected characteristics:

• race;
• sex;
• disability;
• pregnancy and maternity;
• religion or belief;
• age;
• sexual orientation;
• gender reassignment; or
• marriage and civil partnership.

Notably, it is possible to discriminate an employee from a personal characteristic they possess, like their religion. Indeed, you can discriminate based on an employees association with another person who possesses one of the above characteristics. For example, unfairly treating an employee whose spouse is of a certain religion.

However, indirect discrimination, which results in placing a group at an unfair disadvantage to another, may not always be so apparent. It can even go unnoticed if you are not careful. Here are some examples of how this can occur.

1. Employment Terms and Conditions

The way you set terms in your employment contracts may lead to an unfair disadvantage. For example, you might list specific working hours for your employees in their terms and conditions. However, these working may clash with an employee’s hours of religious worship, placing them at a disadvantage. Indeed, this could be a form of indirect discrimination unless you can justify the hours specified in the employment contract.

2. Dress Code

When setting dress code requirements in your workplace, it is important to consider how reasonable they are and whether they are relevant in your industry. If you fail to do so, you might implement dress codes that are not only unnecessary, but discriminatory. For example, suppose you ask all your employees to present themselves as clean-shaven. However, this may indirectly discriminate against individuals whose religion requires them to have a beard.

3. Job Advertisement

If, for example, you place a job advertisement that requires a minimum amount of years of experience in the type of role, this could be a form of indirect discrimination against younger people. Therefore, that advertisement puts them at an unfair disadvantage.

4. Training Course

Suppose you offer a training course to your employees who are recent graduates. This could put older people at an unfair disadvantage because they generally are less likely to have recently graduated.

When is an Employer Not Putting Another at an Unfair Disadvantage?

There are situations where it might initially appear that you are indirectly discriminating at work. However, the seemingly discriminatory behaviour is actually reasonable and conducted in good faith.

In determining whether your actions are reasonable, consider if:

1. You Can Objectively Justify Your Actions

With every decision or policy you make, you should always be able to justify your actions. This means it is possible to indirectly discriminate against a group of people if you:

• have a legitimate business need; and
• act proportionately.

An example might be asking your staff to work Sunday shifts at your restaurant because it is a busy day. So, this requirement may be a legitimate business need. However, if you only require staff to work every other Sunday, this could show proportionately.

2. You Take Reasonable Action to Prevent Discrimination

As an employer, you must not indirectly discriminate against your employees. However, be aware that the law can hold you responsible for others doing so. For example, where your suppliers or other employees indirectly discriminate and you do nothing to stop the issue. However, if you can demonstrate that you took reasonable action to stop instances of discrimination, it might not be considered indirect discrimination.

Key Takeaways

It is essential that as an employer, you can distinguish potential indirect discrimination, which places a group of employees at an unfair disadvantage to other employees. It is illegal to discriminate against employees during their employment with you and others through your recruitment process. Where an employee claims unlawful discrimination, a court or tribunal will usually try to put the employee in the position they would have been in if you had not discriminated against them. This is likely to involve you paying compensation.

If you need help understanding indirect discrimination in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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