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Fair enough? How to avoid indirect workplace discrimination

Luke Whitmore - Law on the Web

  1. 01 September 2015
  2. Business
  3. 0 comments
Victimised employee?

There are few among us who have a problem with the existence of workplace discrimination laws. It can be agreed on that as part of a modern society, nobody should face being treated badly at work simply due to some harmless part of their identity. If you run your own business, you might think that since you don’t hate anyone, you’re not at any risk of discriminating against your employees.

However, you might want to think twice about this – and remember that you can discriminate accidentally. Just because you have good intentions doesn’t mean that you can’t commit what is known as ‘indirect discrimination’.

What is indirect discrimination?

Indirect discrimination is a form of discrimination where expectations, practices or policies in the workplace lead to certain groups of people being treated unfairly.

You may already know that discrimination is when people are treated worse due to one or more ‘protected characteristics’ – including such things as their gender, race, religion and age – but you may not realise that this doesn’t have to happen on purpose for it to be discriminatory. It can also happen without cruel intentions, when rules or practices in the workplace create more of a disadvantage for some people than they do on others.

For example, if you ban all employees from wearing any form of head covering in the workplace, this could be seen as discriminatory against Muslim or Sikh employees who wear them for religious reasons. Other employees who are not compelled by their beliefs to wear anything on their heads would be less affected by the policy, so it affects certain people more due to a protected characteristic (religious belief).

This can give rise to a discrimination claim even when the intent behind the policy was not discriminatory – for example, if you just thought it would be more professional to have a dress code like this in place.

How to avoid indirect discrimination

So once you know that indirect discrimination exists, how can you avoid it in your business?

The best way to avoid indirectly discriminating is to make sure you think through the implications of any policies or practices you put into place in your business. Many discrimination cases come about because employers do not consider the effects that their decisions may have on certain workers. If you have policies which exist simply because it’s how things have always been done or you thought they sounded about right, you might risk unfair treatment of some employees who are disproportionately affected.

The other side of the coin is that if someone accuses you of discrimination but the policy they’re complaining about is proportionate to achieve a “legitimate aim”, you can use that as a defence. So, if there was a reason that no head coverings were allowed in the workplace - for example, they had to be removed so that employees could wear appropriate safety gear – this potentially could be a justification for the policy. However, you should still try to accommodate everyone’s needs to the best of your business’s ability – a weak or irrational reason for doing something can be as bad as none at all. Even though indirect discrimination can potentially be justified in some instances, it will never be justified to directly treat someone unfavourably because of a protected characteristic.

You should also make sure your organisation encourages employees to come forward if they are having issues with any policies. In some cases it may be genuinely hard to anticipate indirect discrimination, but if you make it easy for people to let you know that they feel they are being treated unfairly, there is a greater chance that you will be able to avoid any claims being brought against your company.

If you’d like to find out more about avoiding discrimination in the workplace, take a look at our section on Equality and Discrimination.

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