What are the elements that constitute a claim of indirect discrimination?

Under s.19 of the Equality Act 2010, indirect discrimination occurs where person A applies to person B a provision, criterion or practice that is discriminatory in relation to a relevant protected characteristic of B's.

A provision, criterion or practice is discriminatory in relation to a characteristic, if:

  • A applies (or would apply) it to people who do not share the protected characteristic with B (eg people who are not of the same racial group as B);
  • it puts (or would put) people who do share the protected characteristic at a particular disadvantage when compared with others who do not share it;
  • it puts (or would put) B at that disadvantage; and
  • A cannot justify the provision, criterion or practice by showing that it is a proportionate way of achieving a legitimate aim.

The courts must balance the employer's need to apply the provision, criterion or practice, with its discriminatory effect on the employee.

The relevant protected characteristics are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation. Protection from indirect discrimination does not apply in relation to pregnancy and maternity.