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Indirect Discrimination – When will there be a provision, criterion or practice?
It can be sometimes very difficult to determine whether the actions of an employer amount to a provision, criteria or practice which can then run the risk of resulting in indirect discrimination against an element of the workforce. The recent Employment Appeal Tribunal case of Carreras v United First Partners Research has provided clarification on what amounts to a provision, criterion or practice (“PCP”) when considering if an employee has been indirectly discriminated against. Specifically, the case looked at whether there is a requirement or obligation placed on an employee by an employer to actually do something in order for there to be a PCP.
In order to determine whether there has been indirect discrimination it is obviously important to understand when it can potentially arise.
Under the Equality Act 2010, indirect discrimination is a type of discrimination that occurs where the employer applies to the employee an apparently neutral provision, criterion or practice that the employer would apply equally to other employees, but which puts or would put those who share the specific employee’s protected characteristic at a particular disadvantage. There will be no discrimination if the provision, criterion or practice is objectively justified.
The protected characteristics can be one or more of age, sex, sexual orientation, gender reassignment, pregnancy and maternity, disability, marriage and civil partnership, religion or belief and race.
A practical example may be when an employer changes working pattern to require all employees to work on Saturdays and threatens disciplinary action should they refuse (which amounts to a PCP) despite some of the workforce being religious and it being against their religion to do so.
If the employer is unable to objectively justify the PCP then they will have indirectly discriminated against those employees who have been disadvantaged.
However, it is clear in this example that the PCP requires the employees to do something. The question facing the Tribunal in the above case is, in the absence of a clear requirement, when will the employer’s actions amount to a PCP?
Carreras v United First Partners Research
The Claimant, Mr Carreras was disabled having been injured in a cycling accident. Mr Carreras had not been dismissed by the Respondent but brought a claim against them for indirect discrimination as he said that it was a PCP of the Respondent that employees of the Respondent would be expected to work late.
When the claim was first heard by the Employment Tribunal, it stated that, although it was assumed by Mr Carreras’ employer that employees would work late, no employee had been coerced into working late by them. The employer had therefore not put a PCP in place which required employees to work late and, as a result, Mr Carreras had not been put at a particular disadvantage by that PCP as a result of his protected characteristic of having a disability.
Mr Carreras appealed this decision and his appeal was successful. On appeal, the Employment Appeal Tribunal found that the Respondent had an assumption and an expectation that their employees would work late. This amounted to more than a simple request to work late and was therefore a PCP.
Employers should be aware of any assumptions or expectations that they make of their employees as these could amount to a PCP which puts a particular employee or employees who have a protected characteristic at a particular disadvantage and therefore result in indirect discrimination. In such cases, steps should be taken to make sure that no employee is disadvantaged by any common practice or expectation in the workplace.
Chris King, Napthens LLP – QCS Expert Employment Law Contributor