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Direct and indirect discrimination – what’s the difference ?

Equal Opportunities Law states that all individuals should be employed, paid and promoted solely because of the skills and abilities they possess and how they do their job and when an employee or applicant is treated less favourably than another employee or applicant by the employer this will be classed as discrimination.

In cases like this the employee or applicant being discriminated against, whether deliberately or unknowingly, will then be well within their rights to take legal action against the employer.

Grounds for discrimination can include being treated less favourably because of an individuals:

  • Religious or spiritual beliefs
  • Age
  • Sex/gender
  • Sexual orientation
  • Nationality
  • Ethnic background
  • Race
  • Colour
  • Pregnancy/maternity leave
  • Marriage/civil partnership
  • Gender reassignment (sex change)
  • Disability

Direct Discrimination

Direct discrimination is when an employer deliberately treats an employee or applicant less favourably than another because of one of the reasons above – for example – An employer has both a male receptionist and a female receptionist but the male receptionist receives a higher wage than the female receptionist despite both employees doing the same job. This type of deliberate discrimination would be classed as sex/gender discrimination and is illegal.

Indirect Discrimination

Indirect discrimination is a little more complicated than direct discrimination and is generally when a specific company rule, criteria or condition which has been put in place results in a particular group of individuals or employees being put at more of a disadvantage than another group of individuals or employees.

One example of indirect discrimination would be an employer stating that all male members of staff must be clean shaven, thus putting members of certain religious sects at a disadvantage.

Whether or not it is done on purpose indirect discrimination is unlawful however, if it can be proved by the employer that the particular criteria or condition put in place is necessary for the running of the company/business and there are no other alternative options available it may, in some cases, be allowed.

An example of this would be a restaurant owner advertising for chefs for the kitchen but stating that all applicants must be clean shaven for the purposes of hygiene.

Taking Action against Discrimination in the Workplace

When an employee suffers some form of discrimination in the workplace the first step is for the employee to discuss the matter with the employer or individual who has discriminated against them.

It may well be that the employer was not aware of his/her actions and did not realise how much distress it had caused the employee. If this is the case then it will more than likely be possible for the employee and the employer to reach an amicable agreement with regard to the discrimination.

If it is not possible for the employee and the employer to reach an agreement or even for the employee to approach the employer or individual responsible for the discrimination in the first place then the employer should then utilise the company’s grievance procedure.

The grievance procedure will allow the employee to put in a formal complaint regarding the discrimination he/she has suffered and the complaint will then be taken to the person or persons in higher authority within the company with the aim of having the grievance heard and addressed satisfactorily.

If, again, this particular option is not successful, no action is taken against the individual responsible for the discrimination and, subsequently, the discrimination continues the employee may then feel that they have no other choice but to take legal action against the employer.

When making a claim for discrimination through an employment tribunal the employee will need to be able to prove that discrimination has actually taken place so the more evidence they can provide the stronger their case will be with a higher chance of success.

However, in cases of indirect discrimination, it is possible that the employer may be able to demonstrate and prove that any particular criteria or condition which may have appeared discriminatory are actually justifiable.

Although the tribunal will give thought to the needs of the employer’s company they will also use their discretion to weigh up the importance of the employer’s needs in comparison to the effects of the discrimination suffered by the employee.

Additional useful web resources on this topic

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