How to deal with indirect discrimination at work as an employer

1. What is workplace discrimination?
2. What is indirect discrimination?
3. What working practices and policies are liable to indirect discrimination at work?
4. Examples of indirect discrimination at work
5. When can indirect discrimination be justified?
6. How to prevent indirect discrimination at work
7. Manage your people and processes with PeopleHR

Workplace discrimination refers to unfair treatment based on protected characteristics like age, sex, race or disability. While direct discrimination involves deliberately treating someone less favourably due to a protected characteristic, indirect discrimination at work occurs when a seemingly neutral policy or practice unintentionally negatively impacts employees from a particular group.

While this form of discrimination isn’t intentional, it can still have serious consequences and must be addressed to ensure a fair, inclusive working environment. As an employer, you have a responsibility to ensure that your policies and practices don’t inadvertently disadvantage certain groups of employees, and to take proactive steps to prevent and resolve issues of unfair treatment.

What are the nine protected characteristics?

The Equality Act 2010 sets out nine protected characteristics to ensure that employees are treated with equality and respect. Unfair treatment relating to any of these areas is considered to be discrimination from a legal perspective.

The protected characteristics are:

• Age
• Disability
• Gender reassignment
• Sex
• Sexual orientation
• Religion or belief
• Race
• Marriage and partnership
• Pregnancy and maternity

Any policy or practice that discriminates against individuals based on these characteristics, either deliberately or indirectly, could lead to a claim of discrimination. This could have serious consequences for your organisation, both in terms of legal liability and damage to your reputation.

Indirect discrimination at work at work occurs when a policy or practice that applies to everyone unintentionally places people from a particular group at a disadvantage. This can happen even if the policy is not explicitly discriminatory. Unlike direct discrimination, indirect discrimination happens because of a rule or practice that has a disproportionate effect on certain employees.

For instance, requiring all employees to work full-time hours may disadvantage those with childcare responsibilities. As women are typically the primary caregivers in many households, they are more likely to be affected by such a policy. This is an example of indirect discrimination because, although the policy is neutral in wording, it could disproportionately affect women more than men.

Certain working practices or policies may inadvertently discriminate against protected groups. Employers need to be aware of how their workplace policies could have a negative impact on specific employees, even when they are not intentionally discriminatory. Here are some key areas that are common causes of indirect discrimination at work.

Facilities

Access to appropriate facilities is a crucial consideration. Providing facilities such as toilets or restrooms that aren’t adequately accessible to people with disabilities could be considered indirect discrimination at work. Employers must ensure that all employees have equal access to basic facilities to avoid unintentional discrimination.

Dress codes

Dress codes that require employees to wear formal attire might disproportionately affect certain groups, such as those with religious dress requirements or those with specific cultural attire. These policies can be seen as indirect discrimination if they make it difficult for certain individuals to comply with their religious or cultural norms. Formal dress codes should be reviewed to ensure they are inclusive and flexible.

Working hours

A policy requiring employees to work standard 9 to 5 hours might negatively impact employees who have caregiving responsibilities or those who observe certain religious practices. For example, a full-time schedule may disadvantage parents, particularly mothers. Offering flexible or compressed working hours can help to prevent working hours from becoming a barrier to equality in the workplace.

Ways of working

Companies that require all employees to work from the office may unintentionally discriminate against those who are unable to attend due to disabilities or family commitments. Providing options for hybrid working or remote work can offer greater inclusivity and flexibility, helping to avoid indirect discrimination at work. This allows employees to balance their personal and professional responsibilities, creating a more supportive and equitable environment for everyone.

Recruitment

Recruitment policies that favour candidates with particular qualifications or experience might unintentionally discriminate against certain groups, particularly older candidates or those with disabilities. For instance, if a job requires a particular qualification but doesn’t consider suitable equivalents, it may exclude candidates who are unable to access the specific qualification listed. Ensuring a fair and transparent candidate shortlisting process can help to avoid this issue.

Promotions

Promotions based on subjective assessments or biased perceptions can lead to indirect discrimination at work. If promotions are based primarily on informal networking or visibility, certain groups, such as women or minorities, might be at a disadvantage. To prevent this and ensure fairness throughout the entire employee lifecycle, it’s important to establish clear, objective criteria for internal recruitment and promotion decisions.

Redundancy

In the case of redundancies, employers must ensure that the criteria used don’t disproportionately affect certain groups. For example, selecting employees for redundancy without considering their protected characteristics could lead to indirect discrimination. Reviewing your redundancy process regularly ensures that these decisions are fair and transparent.

It’s important for employers to recognise how discrimination, both direct and indirect, can negatively impact employees, and why they need to take proactive measures to prevent unfair treatment at work.

Let’s explore some different examples of indirect discrimination and how easily they can be overlooked.

Example of indirect discrimination relating to sex

An example of indirect discrimination related to sex might be a company policy that requires employees to work long hours in the office, making it difficult for those with childcare responsibilities to manage their workload. This policy may disproportionately affect women, who are more likely to have caregiving responsibilities. The company could address this by offering flexible working arrangements, allowing both men and women to balance work and family commitments.

Example of indirect discrimination relating to age

A company that mandates a minimum of 10 years’ experience for certain positions could inadvertently discriminate against younger candidates who may have the skills but lack the specified years of experience. This could lead to indirect discrimination based on age. By removing arbitrary experience requirements and focusing on skills and abilities instead, companies can ensure a more inclusive recruitment process.

Example of indirect discrimination relating to religion

A company with a policy that all employees must work on Saturdays might unintentionally discriminate against employees who observe religious practices on that day, such as those who follow Judaism or Islam. This policy could be seen as indirect discrimination against these groups, as it doesn’t take their religions into account. Offering flexibility in work schedules or allowing time off for religious observance can help to ensure fairness and inclusivity.

Example of indirect discrimination unrelated to a protected characteristic

It’s important to remember that indirect discrimination at work isn’t limited to protected characteristics. For example, a company may have a policy that requires all employees to travel frequently for work. This could disadvantage those with health conditions that make travel difficult or costly. The company could modify the policy to allow for alternative methods of work, ensuring that all employees have equal opportunities to succeed, regardless of their personal circumstances.

While indirect discrimination at work is generally unlawful, there are instances where it may be justified. This typically occurs when the policy or practice serves a legitimate business purpose that outweighs the impact on certain groups.

Example of indirect discrimination at work that might be justified

The selection criteria for redundancy may include specific skills or experience that indirectly disadvantages certain employees. However, if the company can demonstrate that these criteria are necessary for the survival of the business, the policy could be justified.

For example, a company based in the UK that does a lot of business in China may choose to retain employees who are able to speak Mandarin when making redundancies. While this could disproportionately affect employees based on their race, the company can show that the decision was based on business needs rather than discriminatory intent.

Preventing indirect discrimination requires a proactive approach. Employers should regularly review policies and practices to make sure they don’t put certain groups at a disadvantage, even unintentionally. Here are some key steps that can help to mitigate indirect discrimination in the workplace.

Revise your recruitment process

An inclusive recruitment process is one that ensures that all candidates, regardless of their background, have an equal opportunity to succeed. One way to achieve this is by adopting blind recruitment. This practice involves removing personal details from CVs and applications to avoid unconscious bias, helping to create a more objective selection process.

Be aware of biases when promoting staff

When creating policies and procedures for employee promotions, it’s essential to be aware of any biases that could influence the process. Regularly reviewing internal recruitment practices is a key step to make sure promotions are based on objective criteria rather than personal preferences or unconscious biases. This can help to prevent indirect discrimination and give all employees equal access to opportunities.

Use surveys to assess the impact of policies

Certain biases may not always be visible to decision makers, who are often not directly impacted by the policies in place. Using pulse surveys can help employers to gather feedback from employees about how workplace policies affect them. These insights can highlight potential issues with indirect discrimination and guide adjustments to ensure fairness across the organisation.

Make reasonable adjustments wherever possible

Employers are required to make reasonable adjustments to accommodate employees with disabilities or other protected characteristics. This might include providing special equipment, flexible working hours, or changes to the physical work environment.  Doing so helps to minimise the risk of indirect discrimination, ensuring that all employees have equal opportunities to thrive in the workplace.

Carry out regular compliance audits

Regularly auditing your HR processes can help you to identify potential areas of indirect discrimination before they become a problem. Conducting these audits ensures that your policies and practices remain compliant with equality laws and are continuously improving. This proactive approach benefits employees by fostering a more inclusive and supportive environment, in turn increasing job satisfaction and minimising staff turnover.

Document the steps and decisions made

Keeping a record of the decisions made and the rationale behind them can help to demonstrate that your company is committed to preventing discrimination. Documenting these steps can also protect the company in the event of an indirect discrimination claim. These records can also provide valuable insights for future decision making, ensuring that policies and practices are consistently aligned with your company’s commitment to fairness and equality.

Preventing indirect discrimination is crucial for creating an inclusive workplace. Understanding what indirect discrimination is, who is affected by it, and what can be done to prevent it enables employers to create policies that promote fairness and inclusivity, ensuring that all employees are treated equitably.

HR software is a great tool to ensure that your policies and processes are fair, transparent and free from discrimination. By streamlining compliance audits, tracking recruitment processes and managing employee feedback, HR software helps employers to identify potential issues early and take proactive measures to maintain an environment where all employees feel valued and supported.

To see how PeopleHR can support equality in your organisation, explore our free demo or get in touch with our team to discuss the specific needs of your business.