Most people are familiar with the concept of direct discrimination: when someone is treated less favourably because of a protected characteristic, for example, if someone is treated less favourably because of their religion or race, then that will amount to direct discrimination.

The concept of indirect discrimination, however, is less well-understood. Essentially, it covers a situation where a provision, criterion or practice (known as a PCP) is applied to everyone but has the effect of disadvantaging people who share a particular protected characteristic.

A simple example that is often used to illustrate this point is to consider a (hypothetical) rule operated by a police force that all officers must meet a height requirement of 5’9”.

Whilst this rule is applied to all, it inevitably has adversely effected disadvantaging more women than men. Therefore, a woman who was 5’2” would be able to argue that the rule adversely disadvantaged women as a group, and her in particular.

However, unlike direct discrimination, it is possible to justify indirect discrimination, if it can be shown that the PCP is in place to meet a ‘legitimate aim’ and is a proportionate means of doing so.

Miss Hughes was employed by Progressive Support Ltd, which provided support services to adults with disabilities who required 24/7 assistance. Her contract guaranteed her a certain number of hours per week, but those hours varied to allow the ‘unsocial’ shifts to be shared equally within the team.

However, when Miss Hughes returned from maternity leave, it was agreed that she would be granted allocated shifts on the basis that she had explained that she had limited childcare available to her. However, this agreement was then rescinded, and Miss Hughes was offered shifts at varying times, many of which she was unable to perform due to her childcare requirements.

Miss Hughes, therefore, brought a claim against her employer alleging that she had been indirectly discriminated against.

The requirement to work different shifts was applied to all, but she argued that it adversely impacted women, who were more likely to have childcare responsibilities that meant that they could not be as flexible about the hours they were available to work.

The employment tribunal did not uphold her claim that a PCP had been applied to her and accepted the employer’s argument that Miss Hughes had not suffered any disciplinary penalty for not being able to undertake the allocated shifts.

However, the employment appeal tribunal disagreed. Miss Hughes clearly did suffer a financial penalty in that she was not paid for the shifts she did not undertake.

She had also been told that if she could not undertake the shifts allocated to her, consideration might be given to putting her on a zero-hours contract – this was also a detriment. Therefore, it was correct to state that a PCP had been applied to her.

That was not the end of the matter, there needed to be consideration of whether the PCP did in fact put women at a disadvantage. The tribunal had not made any factual findings on that, nor had they considered whether in this case such a rule was in fact justified, given the nature of the employer’s business. The case would therefore have to be reheard, to consider these matters.

This case is a useful reminder of the importance of assessing policies, rules, or requirements that an employer applies to all its employees to ensure that they do not adversely impact any particular protected group. If they do, then consideration needs to be given whether that particular rule or policy is required, or whether there is an alternative, non-discriminatory way of achieving the same outcome.

Safia Tharoo
Barrister, 40 Bedford Row, London