Indirect discrimination

Direct discrimination tends to be straightforward to identify. Direct discrimination occurs when one employee is treated differently because of who the employee is.

For instance, making a decision not to recruit a candidate based on his/her nationality is direct race discrimination.

Indirect discrimination tends to be a bit more nuanced. The following examples of indirect discrimination at work will help you prevent the discriminatory practice manifesting in your business.

What is indirect discrimination at work?

Indirect discrimination occurs when an employee or group of employees are treated less favourably as a result of employment requirements that they are unable to satisfy.

An employment rule that applies to all employees in the same way is on the face of it, an equal treatment policy. A policy that applies equally to all employees can nevertheless be discriminatory. 

Treating all employees equally may result in certain employees being disadvantaged because of who they are. Equal treatment policies must therefore be mindful of the nine employment equality grounds to ensure that no inadvertent, indirect discrimination is allowed to manifest.

While your across-the-board employment policies may be well intentioned, this will be no defence if the policy discriminates against a group of employees or job applicants because of their sex, age, religion or any of the other protected characteristics. This type of discriminatory treatment will often arise unintentionally and this is why it is known as indirect discrimination.

The Employment Equality Acts 1998 -2015 prohibit both direct and indirect discrimination. If an employee or job applicant is treated differently based on who they are, they may have grounds to make a claim under the employment equality legislation.  

It is not straightforward to explain how indirect discrimination at work manifests and the following examples will help clarify how certain policies will be indirectly discriminatory.    

Indirect discrimination on the ground of race

Anja has moved to Ireland from Poland. She applies for a job that she feels she is qualified for. The job posting specifies that all candidates must hold Irish educational qualifications. Anja decides not to apply for the job as she does not hold any Irish qualifications.

Anja would have grounds to make a discrimination claim against the employer on the ground of race. The employer is treating Irish qualified applicants more favourably than foreign nationals who are less likely to have obtained Irish educational qualifications. To justify requirements that are indirectly discriminatory the employer must demonstrate that the requirement is essential, appropriate and necessary. There may be justifiable reasons behind the requirement for Irish qualifications being required.

Indirect discrimination on the ground of religion

Michael is a Christian man working in a retail operation. Michael is informed that the shop will now be open on Sundays and that all employees will be required to work one Sunday per month.

Michael explains that it will not be possible for him to work on Sundays as it is not permitted under his religious faith. The manager says that it will be unfair and disruptive to the team if Michael is the only employee not required to work Sundays.

Michael would have grounds to lodge a claim of indirect discrimination on the ground of religion. The new rota requiring all employees to work one Sunday shift prevents Michael from practising his religion. All other members of Michael’s religion are also treated less favourably than people of other faiths.

Indirect discrimination on the ground of gender

Anne is due to return to work following the birth of her first child. She asks her employer if it would be possible to reduce her hours to allow her to manage her childcare responsibilities.  Her employer refuses the request stating that all employees are required to work full-time hours.

Anne may have a claim for indirect discrimination on the ground of gender. A company policy requiring all employees to work full-time hours is likely to be harder for women to comply with as they’re more likely to fulfil the childcare role in the home.

Anne would also be personally disadvantaged by her employer being required to put her child in full-time childcare.

Unlimited compensation

Employers need to be aware that the financial consequences of a discrimination claim on the ground of gender can be severe. The courts have unlimited jurisdiction to make orders of compensation in gender discrimination cases.