Indirect discrimination means that an organisation must not have recruitment and selectioncriteria,policies,employment practices which although they are applied to all employees,disadvantage people of a particular religion or belief,unless the practice can be justified.
This is different to direct discrimination, which cannot be justified. To justify a particular practice, an employer must show that there is a real business need and that the practice is proportionate to that need. In other words, that it really is necessary and there really is no alternative approach. So, an employer could be guilty of indirect discrimination if rules on leave particularly disadvantage some groups in comparison with others and cannot be objectively justified. Note that in order to demonstrate that indirect discrimination has taken place, aggrieved persons do not have to rely on statistical evidence to prove that they have been disproportionately affected as a group, in comparison with members of other groups. Indirect discrimination is unlawful whether it is intentional or not.
Case Study 1
A supervisor insists on holding his team meeting to review the week’s performance between 11.30am and 12.30pm on a Friday. The meeting regularly over-runs. Such a practice could disadvantage Muslim employees who attach particular importance to Friday mid-day prayers. It could, therefore, be discriminatory if it cannot be justified.
Case Study 2
A boutique has a policy that all staff must wear the same clothes and alternate between 2 outfits, one of which is a short skirt and short sleeved polo neck sweater. Such a policy could disadvantage Jewish employees. Jewish women wish to dress modestly and may not want to wear short skirts or short sleeves. This policy could be discriminatory.
Case Study 3
An organisation has a dress code, which states that men may not wear ponytails. This may indirectly disadvantage Hindu men some of whom wear a Shika (a small knotted tuft of hair worn at the back of the head), as a symbol of their belief. Such a policy could be discriminatory.