Having a diverse and inclusive workplace is one of the best things employers can do to ensure the safety and happiness of their people. Diversity breeds creativity, different perspectives and a sense of belonging, after all. But unfortunately, even with diversity can come discrimination. This is when an employee is treated unfairly because of something like their gender, sexuality, race, religion or disability.
It’s important to remember that not all discrimination is direct or immediately obvious – and this is where things can get tricky. Here, we’ll uncover how indirect discrimination can manifest itself in the workplace and the best course of action to take for anyone affected.
What is indirect discrimination?
Indirect discrimination is when there’s a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others. On the face of it, treating all employees equally sounds like a great idea. But applying a blanket policy or rule does not take into consideration how race, religion, age and other protected characteristics can face unfair treatment.
Under the Equality Act 2010, which was brought in to legally protect people from discrimination at work, protected characteristics are:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and civil partnership
- Race
- Religion or belief
- Sex
- Sexual orientation
Let’s say a business requires all of its employees to take their turn working a weekend shift, this does not take into consideration the religious needs of certain individuals. For example, Jewish people are often expected not to work on Saturdays because of Shabbat, the Jewish day of rest.
Or maybe a person on maternity leave asks for flexible working hours when they return to work, but the business rejects this request because all employees are expected to work full-time. This company-wide rule therefore has a worse effect on women than men, given that women are more likely to be the primary caregiver.
It’s easy to see how, in this case, one size does not fit all. This is where employers need to realise that there are edge cases and work to adapt their policies to suit the needs of individual employees.
Can indirect discrimination ever be justified?
There are situations in which indirect discrimination is allowed. For instance, an employer might need to take certain decisions that unfortunately lead to indirect discrimination, and this may be legal if there is considered to be 'objective justification'.
To be justified, an employer must prove both of the following:
- There's a 'legitimate aim' (like a genuine business need or a health and safety need)
- The discrimination is 'proportionate, appropriate and necessary' (aka, the legitimate aim is more important than any discriminatory effect)
If you’re applying for a job in the fire service, you might be required to take some physical tests to demonstrate your fitness and agility. If you’re above a certain age, this might be more difficult for you, which could lead you to believe you’re being discriminated against because of your age. However, the fire service is an industry that requires a certain level of fitness as a genuine business and safety need, so this would be considered legal
Financial reasons alone are unlikely to justify discrimination. In general, the more the action discriminates, the more unlikely it is that the employer will be able to prove it's legal.
How to deal with indirect discrimination at work
Any complaint of discrimination should be taken seriously. It’s all well and good having a DEI policy, but if you’re not protecting your employees, it’s irrelevant. The first step you should take is to talk to the person who raised the issue, to help you understand the details and how to resolve it. Bear in mind they might ask to be accompanied by a trade union representative or a colleague, which they have a right to do.
It’s a good idea to ask the employee how they’d like the situation to be handled. Maybe they want you to have a word with the person discriminating, maybe they’d like the policy in question to be amended, or perhaps they want to take the matter further. If it’s the latter, you should follow a formal grievance procedure and find someone neutral to investigate the complaint.
How can you prevent it?
- Empower people to open up - Letting your workforce know that you’ll support them if they come forward with an issue demonstrates your stance on discrimination. An issue that’s raise informally can even help your business, as it shows you where you’re going wrong.
- Gauge feedback with surveys - Launched a new policy or scheme at work? Ask your employees what they think of it. Use our top tips for writing an effective survey, such as making sure all feedback is anonymous. Be sure to take any feedback on board so it’s obvious you’re serious.
- Employ a diversity champion or committee - This gives minority groups a safe space to air any issues they might have casually, and offers the diversity champion time to make the necessary changes. Any new company rules or policies should be reviewed by the diversity champion and HR before being launched officially, to make sure they’re fair.
- Keep clear documentation of any complaints - Recording any issues that arise is a good way of making sure history doesn’t repeat itself, as it gives you the direction to change whatever’s not working. It can also come in handy if a formal complaint is raised, so you can show the steps you’ve taken to rectify the situation.
Being proactive and acting against indirect discrimination is the best way to remove it from your workplace. Now is a great time to rethink your approach to diversity and why it matters to your business, as if you have very few workers with different demographic backgrounds than the majority, it’s easy for them to feel isolated or vulnerable. So take some time to consider your diversity efforts – from recruitment all the way through to promotion – if you want your workplace to blossom into one that’s free from discrimination.