What is the difference between direct and indirect discrimination?
Content / trigger warning
The Equality Act 2010 classifies “direct” and “indirect” discrimination separately - but what does that mean? It’s important to understand and identify the type of discrimination you’re facing as it’ll influence how you stand up to your employer and build your case.
Direct versus indirect discrimination
Direct discrimination is when someone with a protected characteristic is treated less favourably than if they didn’t have that protected characteristic. Direct discrimination can also apply where someone is treated less favourably because they are:
- with someone who has a protected characteristic
- wrongly thought to have a protected characteristic.
Indirect discrimination is more subtle. It happens when a workplace rule or practice has the outcome of treating a group with a particular protected characteristic negatively compared to a group without that characteristic.
Examples of direct discrimination
Direct sex discrimination: a promotion panel had been aware of the genders of the candidates whilst marking their applications. A discrimination case won at Tribunal; they found that this could have led to unconscious discrimination against a candidate because she was female.
Direct pregnancy and maternity discrimination: In a pregnancy discrimination case brought to Tribunal in 2014, after a police dog handler told the force she was pregnant, they removed one of her narcotics police dogs from her.
Direct race discrimination: The UK Government guidance on the Equality Act gives the example of an employer rejecting a job application from a white man who he wrongly thinks is Black, because the applicant has an African-sounding name. This is discrimination based on perception.
Direct sexual orientation discrimination: The UK Government guidance on the Equality Act also gives the example of a manager treats a worker less favourably because they have been seen out with a person who is gay, even though the worker themselves is straight. This is discrimination by association.
Examples of indirect discrimination
Indirect disability discrimination: an employer who applied a workplace practice which disadvantaged a disabled employee were found to have been indirectly discriminatory, because they failed to implement reasonable adjustments and then inappropriately used their capability procedure to dismiss him.
Indirect race discrimination: a Sikh employee won a claim where his employer instituted a dress code that prohibited wearing a turban. Read about the case on BBC News.
Indirect sex discrimination: a company asked its employees to return from furlough, and a woman’s request to extend this for childcare reasons was refused. The Tribunal found that the burden of childcare still falls disproportionately on women, so this constituted indirect discrimination.
Indirect religious discrimination: if a Jewish engineer decides not to apply for a role because the selection exercises take place on Saturdays, the company will have indirectly discriminated against the engineer, unless the practice can be justified. This example comes from the explanatory notes to the Equality Act 2010.
Why the difference matters
When you make a claim against your employer in tribunal, you need to set out the specific type of discrimination that you are claiming in your ET1 form. You also need to explain how the facts of your case show that type of discrimination. It’s important to try to get this right, because the Tribunal won’t always let you amend your claim later on.
You can always make claims for more than one type of discrimination, and narrow this down later. However, if you plan to withdraw a claim, don’t delay - otherwise you risk having to pay some of your employer’s costs.
What if my case isn’t direct or indirect discrimination?
If your case doesn’t amount to direct or indirect discrimination, this doesn’t necessarily mean that you aren’t being discriminated against. Here are a few other types of discrimination that may be relevant to you:
- Sexual harassment
- Failure to make reasonable adjustments
- Discrimination arising from disability
- Part-time worker protections
- Fixed-term contract protections
We’re here to help
If you’re being discriminated against - directly or indirectly - you need to start pulling together your evidence so you can decide what to do. You might start by making an informal complaint or raising a formal grievance. If you decide to submit a Tribunal claim, remember that you usually only have three months less one day from the date of the most recent incident.
Sign up for your free account with Valla for a secure, personal space to get your story together.