Indirect discrimination is one of the four main types of discrimination recognised in the Equality Act 2010 (alongside Direct discrimination, harassment, and victimisation). I have written an introduction to the idea of indirect discrimination before so won’t repeat that here.
In early 2024 the Equality Act 2010 was amended to introduce section 19A into the legislation and it is a change that all trade union reps will want to be aware of.
In 2015, back in those heady days when judgment of the European Court of Justice (ECJ) had a direct effect on UK discrimination law there was a case concerning Roma that seemed to open the way to expand the scope of indirect discrimination. The prevailing view at that time was that in order to allege indirect discrimination a person needed to have the protected characteristic that is alleged to have been placed at disadvantage. In other words, a person had to be be female if the claim was that females were at disadvantage because of a policy of an employer, must be disabled if the claim was that persons with a disability were disadvantaged, etc. That expectation was explicitly set out in section 19(1) of the Equality Act 2010: “A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.”
In 2015, the ECJ decided a case concerning the provision of electricity in an area of Bulgaria with a concentration of Roma residents. Electricity meters were placed at 6 metres height, a practice that placed many Roma at a disadvantage. However, the twist in the tale is that the claimant was not Roma (so did not have the protected characteristic) but was short. In CHEZ Razpredelenie Bulgaria [2015] EUECJ C-83/14 found that it was not necessary for a claimant to have a protected characteristic so long as they could establish that the treatment did place a persons with a specific protected characteristic at a disadvantage and the claimant is placed at the same disadvantage.
Since 2015 there have been a couple of cases that have tried to apply the judgment in Chez to make it fit the definition of indirect discrimination in section 19 of the Equality Act 2010, the most notorious is the 2021 Employment Tribunal decision in Follows v Nationwide Building Society (2021), although that decision is subject to some doubt as to whether it really applied Chez or went beyond it.
However, the uncertainty in what effect Chez has to UK law is now thankfully resolved as the new section 19A of the Equality Act makes clear that a claimant now has a distinct indirect discrimination challenge available to them if they believe their employer has a policy/practice that places people of a certain protected characteristic at a particular disadvantage and they also have that disadvantage even if they themselves do not share the protected characteristic itself.
Some Examples
If that seems unclear a couple of examples of how this could be helpful. Suppose you are a single father, expected to work a 9 to 5 job, but also needing to complete daily school runs. It is well established that childcare issues disproportionately affect mothers. Historically then, a mother would have been able to allege the strict 9 to 5 work hours placed females at a disadvantage because they bear the burden of childcare and that this may be indirectly discriminatory. A father by contrast who is facing the same disadvantages had no such option available to them. However, now that father could complain – relying on section 19A – that the strict 9 to 5 working hours placed mothers placed mothers had more of a burden that made meeting the strict timescales difficult and that because he too was faced with that same disadvantage he – like many mothers – are being indirectly discriminated in relation to the protected characteristic of sex.
Another example is where an employer’s sickness policy places disabled staff at a disadvantage (perhaps it offers no scope for any adjustments or discretion in warnings). A disabled person could allege this was indirectly discriminatory as it made it more likely the disabled worker would be dismissed or receive a warning. If a worker does have some underlying health issues but it is not clear this would be a disability on the legal definition (perhaps because not clear if likely to last 12 months or longer) and is placed at the same disadvantage they could – without needing to prove they are disabled – allege indirect discrimination under section 19A. In practice, I expect that in cases where a person’s disability is in legal question a section 19A claim may be issued as an alternative claim in addition to the normal claims such as failure to make adjustments.
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