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Direct And Indirect Discrimination - Which One Will Land You In Court?

30 November 2022

Discrimination at work affects everyone, regardless of their position. It is important to provide employees with a positive and encouraging environment in which they can carry out their duties and be evaluated solely according to their skills and efforts. To ensure that everyone performs at their best, managers and team leaders must create an equitable workplace.

The cost of workplace discrimination in the UK is estimated at £40 billion annually. In addition to staff turnover and decreased productivity, mental health-related medical expenses also contribute to these costs.

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It is a company’s moral obligation to identify and address workplace discrimination. In practice, however, discrimination is much more challenging to address. The act of discrimination can take many forms; it can come from a single person, from a group, or from a specific event. Alternatively, it can be a set of practices that are arguably embedded in workplace culture as a whole. Therefore, we need to understand the difference between direct and indirect discrimination in order to fix the problem, so we can create a fairer (and ultimately better) working environment for all, this is the first step.

Direct Discrimination

The term direct discrimination refers to the treatment of someone unfairly due to a protected characteristic, such as their gender or race. As an example, someone may be turned down for a promotion because they are a woman or a part-time employee, and they are replaced with a less qualified individual.

You can also be subject to direct discrimination if someone thinks you have one of the protected characteristics (e.g. they may incorrectly assume your sexual orientation or religious beliefs) or simply by being associated with or connected to someone with one of the protected characteristics mentioned below:

● Age
● Disability
● Gender reassignment
● Marriage and civil partnership
● Pregnancy and maternity
● Race and nationality
● Religion and belief
● Sex
● Sexual orientation

Indirect discrimination

Indirect discrimination occurs when a policy that applies equally to everyone disadvantages people who have a protected characteristic. Even if a person is not intentionally targeted, they will frequently feel excluded, isolated, or marginalised.

Indirect discrimination is rarely intentional, but rather the result of an oversight on the part of whoever created the policy. As a result, we can frequently assume that indirect discrimination is a result of unconscious bias.

To establish indirect discrimination, there must be a policy that applies to everyone while favouring those from a specific group who have a protected characteristic (when compared to those not in this group).

Examples of direct discrimination include;

● If a pregnant employee comes under scrutiny due to absence caused by morning sickness, this would be direct discrimination due to pregnancy and maternity.

● If a neurodivergent employee asks his employer if he can apply for a new post doing work he is able to do. His employer says he cannot apply because he has a mental health problem. This is an example of direct discrimination.

Examples of indirect discrimination include;

● A job advert for a salesperson says applicants must have spent 10 years working in retail. By doing this the business could be discriminating indirectly based on age. This is because the advert excludes young people who may still have the skills and qualifications needed.

● If an employer requires all employees to work full-time, this could be a case of indirect discrimination. This is because a policy like this will likely disadvantage women more than men, given that they’re more likely to be caring for young children (especially in the first few months after giving birth).

Which type of discrimination is more likely to land you in court?

Both types of discrimination can land you in court but you have to prove this first. You need to show the court facts from which it could determine that you have been discriminated against without any other explanation from the person or organisation you are taking action against.

Before filing a claim against their employer, an employee must provide factual evidence. The judge will consider the claimant's arguments and facts. The defendant will be required to present their version only after they acknowledge the case and the validity of their reasons.

This, like many other legal terms, may appear difficult to understand. While essential in any employment law case, it may not appear so simple at first glance. Understanding how it works allows you to better prepare for and deal with such a situation.

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