The differences between direct and indirect discrimination in the workplace

As if employing people and worrying about employment law wasn’t challenging enough, as an employer, you’re expected to understand the intricacies of discrimination at work. Added to this is the rapid development of social attitudes, which makes it even more confusing when making sure you’re legally compliant. So, let’s walk through what you need to know about direct and indirect discrimination, how to spot it happening at work and how to stay on the right side of the law when dealing with it.

The Equality Act 2010 protects employees against these 9 protected characteristics, which makes it against the law to discriminate against anyone in the workplace namely; age, race, sex, disability, sexual orientation, gender reassignment, marriage or civil partnership, pregnancy and maternity. If any employee feels they have been discriminated against in the workplace, they have a right to raise a complaint, irrespective of length of service.

What is direct discrimination?

Direct discrimination is often the most recognised type, and you’ve no doubt witnessed it – or experienced it at some point. It’s when someone has been treated unfairly because they were not promoted due to them having mental health issues – or when you dismiss someone because of a disability they have.

Another type of direct discrimination you may be less familiar with, is when someone is treated unfairly because of a protected characteristic of either someone they know or someone they’re associated with.  The legal term for this is ‘discrimination by association’ and it’s also known as ‘associative discrimination’.  An example of this can occur when you refuse a flexible working request for someone who cares for a family member with a disability.

What is indirect discrimination?

Indirect discrimination can happen unwittingly with the right intentions. This can happen when you have policies or procedures in place that could impact employees with a protected characteristic.

Examples of indirection discrimination in the workplace would be:

• It might be hot in the office, or you may have client facing staff, but consider how introducing dress code policies can lead to indirect discrimination. For example, preventing certain hairstyles could lead to discrimination if those styles are worn by certain race groups.
• You might be ready to recruit for a new role but whether you’re recruiting internally or externally, consider if the requirements in the advert are crucial to carry out the role.

The important thing to remember is that unlike with direct discrimination, indirect discrimination can be allowed if you can objectively justify a business case for the rule or arrangement.

How to spot when it’s happening and deal with it while staying on the right side of the law

In order to spot when it’s happening, you need to understand what qualifies as discrimination and have a clear understanding of your responsibilities in that area.  You also need to make your employees aware of their rights and their own responsibilities to make sure everyone is compliant.

This can be achieved by:

• Making sure that you have an up-to-date equality, diversity and inclusion policy
• Providing regular and up to date training to your staff on equality, diversity and inclusion and what discrimination means
• Making sure that your staff know how they can raise a complaint if they feel discriminated against and what procedures are in place to address these
• Making sure there are regular one-to-one catch-ups between your employees and their managers, to help build positive working relationships
• Making sure your policies are in line with current regulations to prevent any discrimination and maintaining records showing employees are familiar with the policies

Following these steps can ensure your workplace treats employees fairly and protects employers from being held responsible for discrimination claims raised by employees.