Submitted by: Thomas Brangam.
Question for Section A: Explain and critically evaluate the concept of ‘indirect discrimination’ in Employment Law.
Introduction
Equality and fairness are not necessarily synonymous principles in employment law. The concept of indirect discrimination recognises this fact, as it is not always fair for an employer to treat all of its employees equally. Indeed, the uniform imposition of provisions, standards or practices may detrimentally affect certain employees or individuals, even if such a result was not originally intended. Thus, as Lady Hale summarised in Homer v Chief Constable of West Yorkshire Police,[1] the concept of indirect discrimination seeks to ‘level the playing field’[2] by subjecting to scrutiny seemingly neutral requirements which may in practice disadvantage those with certain characteristics.
Yet, so as to best explain the concept of indirect discrimination in employment law, the relevant law will first be outlined. In order to provide structure, this essay will focus primarily on the law of England and Wales. Following this, the rationales and objectives of this concept will be examined and a critical evaluation presented, in which some attention will be given to the practical application of this concept to certain employment contexts.
The Relevant Law and an Explanation
In England and Wales, the concept of indirect discrimination is enshrined in the Equality Act 2010,[3] which prohibits direct and indirect forms of discrimination on the grounds of certain protected characteristics.[4] These characteristics include, but are not limited to, one’s age, race, sex and religion or beliefs.[5] However, there is a key distinction between the concepts of direct and indirect discrimination in practice.
Direct discrimination occurs where an employer treats an individual worse or differently on the basis of one of their protected characteristics. With the exception of discrimination on the grounds of age,[6] no justification may generally be offered by the respondent where a claim of direct discrimination is substantiated. Consequently, as Gwyneth Pitt has commented, it is common that where direct discrimination is evidenced that ‘the claimant has won.’[7] Thus, it may be said that the objective of direct discrimination as a concept is to facilitate equality by preventing repugnant views or practices from manifesting in the field of employment.
Conversely, indirect discrimination occurs where an employer applies an outwardly neutral ‘provision, criterion or practice’[8] (PCP) which has a worse effect on certain individuals than others. In particular, it is required that persons with the relevant protected characteristic are disadvantaged in comparison to other persons who do not share that feature. Equally, the relevant party must be placed at a particular disadvantage, and the respondent may justify the PCP as a proportionate means of achieving a legitimate aim.[9] Therefore, indirect discrimination is a distinct concept in practice, as an employer may justify it in certain cases.
Moreover, the existence of a group disadvantage is required for a claim to succeed. The case of Eweida v British Airways plc[10] illustrates this prerequisite, in which a claim was brought by a Christian employee of British Airways who breached her employer’s uniform policy by insisting upon wearing a cross at work. Significantly, however, the Christian Fellowship had previously stated to the Employment Appeal Tribunal that ‘It is the way of the cross, not the wearing of it, that should determine our behaviour.’[11] Thus, the Court of Appeal rejected Ms Eweida’s argument and held that there was no group disadvantage. Essentially, this was because it is not a general requirement for those of the Christian faith to wear a cross.
Rationales and Objectives
Yet in considering the rationale of indirect discrimination as a concept in employment law, Christa Tobler contends that it stems from the teachings of Aristotle.[12] More specifically, the Aristotelian view is that justice requires that things that are like are treated alike, and those unalike things are treated as dissimilar.[13] Applying this, it would not be just to treat dissimilar persons as similar, as this may result in one party, or indeed both, being adversely affected. In practical terms, this notion acknowledges the realities of the modern and diverse working environment.
Likewise, McCrudden and Prechal support the Aristotelian view and maintain that equality precludes similar situations from being treated differently, and different situations from being treated as the same.[14] Significantly, however, they qualify this view, and state that treating different situations as the same may be objectively justified in certain circumstances.[15] For example, it may appear indirectly discriminatory on the grounds of age for the police to require job applicants to pass a number of physical tests. Certainly, younger applicants are more likely to pass fitness tests than older ones. However, this condition may be justified, as effective policing requires one to be physically capable.
However, it may be argued that indirect discrimination as a concept in employment law primarily concerns covert practices. Andenæs and Wintemute comment on this point, in which they contend that ‘as employers become more aware of the penalties for unlawful discrimination, overt prejudice migrates into more covert forms of discrimination.’[16] Given this, the concept of indirect discrimination may apply most appropriately to systemic discrimination in the employment field.
Arguably, the facts in Price v Civil Service Commission[17] give some effect to this view. Here, a claim was brought by an individual who had applied for the position of Civil Service Executive Officer which required applicants to be aged between 17½ and 28 years old. Subsequently, the claimant who was 32 years old, argued that this was indirectly discriminatory on the grounds of sex, as women are often engaged in caring for children between these ages.
As a result, the Employment Appeal Tribunal allowed the claimant’s appeal and held that although some women between this age bracket may find it possible to take up employment, ‘others, while desiring to do so, find it impossible.’[18]Hence, the judgment provided by Phillips J was convincing, as the application of the concept of indirect discrimination allowed for the acknowledgement that whilst women between these ages may theoretically choose to work, that such a choice is not necessarily practical.
A Critical Evaluation
However, Andenæs and Wintemute’s view is perhaps overly critical, as it makes an assumption that employers will seek to practice discrimination by covert means. In other words, it is perhaps unreasonable to generalise employers as practising discrimination surreptitiously. Similarly, where a PCP unintentionally causes indirect discrimination, it may be contended that it is not just to impose liability upon the employer in question. Given that the concept of indirect discrimination seeks to facilitate fairness in employment law, is it truly fair to impose liability upon an employer for indirect discrimination which they did not intend to commit?
Nevertheless, this argument is an unconvincing one as inherent biases exist in the workplace regardless of whether they are intentional or not. This point is evidenced by Petersen and Dietz, who claim that employment discrimination remains prevalent.[19] Most convincingly, they argue that employment discrimination in Western societies continues to exist, as, amongst other studies conducted in Europe, ‘a survey of the 100 largest corporations showed that very few had minority employees in senior positions, and none had a chief executive officer who was a member of a minority.’[20]
Likewise, it would seem irrelevant whether indirect discrimination is committed by an employer intentionally or not. Indeed, if a PCP results in the occurrence of indirect discrimination, then it would seem reasonable for the employer to be made accountable, as they omitted in adequately considering its potentially discriminatory effects. Lady Hale addressed this point convincingly in Essop v Home Office; Naeem v Secretary of State for Justice,[21] in which she observed that a wise employer will monitor how their policies impact various groups in their workforce.[22] Consequently, the concept of indirect discrimination in practice arguably serves as an incentive for employers to ensure that their PCPs are not indirectly discriminatory.
Moreover, it may be argued that the concept of indirect discrimination has evolved alongside the progression of societal norms. For example, the Scottish case of Hacking and Paterson v Wilson[23] concerned an employer’s refusal to allow a female employee to work part-time as a property manager after she returned from maternity leave. Significantly, however, the Employment Appeal Tribunal held that it should no longer be assumed that women take the main role in childcare, as more men are now taking on this responsibility. As a result of this, Lady Smith held that it is not inevitable that women are detrimentally affected by an employer’s refusal to grant flexible working hours.[24]
Still, it would seem overly general to state that women no longer assume the primary role in childcare. For example, a survey conducted by the National Childbirth Trust in 2006 found that 79% of women returning from maternity leave requested flexible working due to their assumption of primary childcare.[25] Therefore, it is perhaps questionable as to whether the judgment provided in Hacking[26] was justified. Indeed, the concept of indirect discrimination seeks to facilitate fairness by recognising that some employees may be detrimentally affected by neutral PCPs. Thus, it is perhaps questionable as to why the detrimental effect placed upon the claimant as a woman did not result in her claim succeeding.
Finally, in some employment cases, it may be argued that the concept of indirect discrimination is applied incorrectly. For instance, Lucy Vickers contends that the requirement for a group disadvantage to exist may be inappropriate in certain cases.[27] More specifically, Vicker’s view applies most appropriately to cases concerning discrimination on the grounds of religion or belief, as they often involve beliefs which are personalised. Therefore, it may not be fair for the law to require that similar persons also hold that belief.[28]
Still, if the concept of indirect discrimination became more personalised, this may have negative implications in employment law more generally. In particular, such a reform may allow individuals to more easily claim against employers for alleged indirect discrimination that exclusively affects them in a detrimental manner. Thus, in order to prevent a potential wave of litigation, it would seem most reasonable for the concept of indirect discrimination to remain as it is.
Conclusion
In conclusion, the concept of indirect discrimination in employment law is an essential one. Principally, this is because it reflects the realities of the working environment which, in modern society, is increasingly diverse. Indeed, the application of this concept acknowledges the notion that equal treatment of employees or individuals is not always fair.
Likewise, the concept of indirect discrimination also allows for more systemic forms of discrimination to be addressed in the employment field. Yet most beneficially, it also serves as an incentive in practice, as employers may face liability if they are not aware of the potentially detrimental effects that neutral PCPs may have on those who enjoy certain protected characteristics.
Bibliography:
Books:
Andenæs M and Wintemute R, Legal Recognition of Same-Sex Partnerships (1st edn, Hart Publishing 2001).
Pitt G, Employment Law (9th edn, Sweet and Maxwell 2014).
Tobler C, Indirect Discrimination: A Case Study into the Development of the Legal Concept of Indirect Discrimination Under EC Law (Hart Publishing 2005).
Case Law:
Essop v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27.
Eweida v British Airways plc [2010] EWCA Civ 80.
Hacking and Paterson v Wilson [2011] Eq LR 19.
Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15.
Price v Civil Service Commission [1978] 1 All ER 1228.
Journal Articles:
Petersen L and Dietz J, ‘Prejudice and Enforcement of Workforce Homogeneity as Explanations for Employment Discrimination’ (2005) 35 Journal of Applied Social Psychology 144.
Vickers L, ‘Indirect Discrimination and Individual Belief: Eweida v British Airways Plc’ (2009) 11 Ecclesiastical Law Journal 197.
Legislation and Other Instruments
Equality Act 2010.
Reports:
McCrudden C and Prechal S, ‘The Concepts of Equality and Non-Discrimination in Europe: A Practical Approach’ (European Commission 2009).
National Childbirth Trust, ‘The Experiences of Women Returning to Work After Maternity Leave in the UK’ (2006) <https://www.nct.org.uk/sites/default/files/related_documents/ReturningToWork-Survey.pdf> accessed 11 April 2020.
[1] [2012] UKSC 15. [2] ibid, [17]. [3] Equality Act 2010. [4] ibid, ss 13 and 19. [5] ibid, s 19(3). [6] ibid, s 13(2). [7] Gwyneth Pitt, Employment Law (9th edn, Sweet and Maxwell 2014), p 63. [8] EA (n 3), s 19(1). [9] ibid, s 19(2)(a)-(d). [10] [2010] EWCA Civ 80. [11] ibid, [8]. [12] Christa Tobler, Indirect Discrimination: A Case Study into the Development of the Legal Concept of Indirect Discrimination Under EC Law (Hart Publishing 2005). [13] ibid, p 19. [14] Christopher McCrudden and Sacha Prechal, ‘The Concepts of Equality and Non-Discrimination in Europe: A Practical Approach’ (European Commission 2009). [15] ibid, p 4. [16] Mads Andenæs and Robert Wintemute, Legal Recognition of Same-Sex Partnerships (1st edn, Hart Publishing 2001), p 659. [17] [1978] 1 All ER 1228. [18] ibid, p 293. [19] Lars-Eric Petersen and Joerg Dietz, ‘Prejudice and Enforcement of Workforce Homogeneity as Explanations for Employment Discrimination’ (2005) 35 Journal of Applied Social Psychology 144. [20] ibid, p 144. [21] [2017] UKSC 27. [22] ibid, [29]. [23] [2011] Eq LR 19. [24] ibid, [28]. [25] National Childbirth Trust, ‘The Experiences of Women Returning to Work After Maternity Leave in the UK’ (2006) <https://www.nct.org.uk/sites/default/files/related_documents/ReturningToWork-Survey.pdf> accessed 11 April 2020, p 12. [26] Hacking (n 23). [27] Lucy Vickers, ‘Indirect Discrimination and Individual Belief: Eweida v British Airways Plc’ (2009) 11 Ecclesiastical Law Journal 197. [28] EA (n 3), s 19(2)(b).