The Equality Act is really clear; employers must not discriminate. Since section 19 of the Equality Act came into force in January, more people can potentially claim indirect discrimination.
Be aware of indirect discrimination
Indirect discrimination is where a provision practice or criteria (PCP) that’s applied to everybody neutrally has a disparate effect on a group with a protected characteristic and is not a proportionate means of achieving a legitimate aim. For example, a requirement that everyone work full-time indirectly discriminates against women, who statistically have larger childcare responsibilities. Since January 2024, someone who is not part of the disadvantaged group, for example a man with primary childcaring responsibilities who is also placed at a disadvantage by the demand that he works full-time, can also bring a claim of indirect discrimination.
Make use of equality impact assessments
Equality impact assessments (EIAs) can help you avoid discriminatory practices and protect your business from discrimination complaints by assessing the impact on equality of your policies, practices and decision-making. EIAs are especially useful in the following scenarios:
- Redundancies
It’s become common practice for solicitors representing individuals going through a redundancy process to ask for proof that the employer has assessed the impact of the process on equality. An EIA shows that you take your obligations seriously.
- Changes to terms and benefits
An EIA helps you to identify where a change to the terms of an employee’s contract or a benefit they receive will have an adverse impact on them. An EIA will help you to identify if an individual has a protected characteristic or, if it’s a wider change, if the change is going to have a disproportionate effect on a certain group of people.
- Defending claims
An EIA can help you defend claims of discrimination. The earlier you can overturn a claim, the less likely an employee is to feel mistreated, and the less likely they are to bring a claim in the future.
- Burden of proof in discrimination claims
In a discrimination claim in an employment tribunal, if a claimant proves facts from which, in the absence of an explanation, discrimination could be inferred, the burden of proof transfers to the employer. An EIA gives you documentation showing that, at the time, you worked out what the process was, what the impact was and that you sought to mitigate any impact.
- Recruitment
When advertising a job, an EIA can help you see which criteria are justifiable. If you’ve carried out an EIA and advertise a job as full time, if applicants ask for flexible working you can say you’ve assessed the role and what you need with the EIA to back you up.
