Indirect discrimination is one of the more subtle yet damaging forms of workplace discrimination. It occurs when an organisation applies a policy, practice, or rule that appears to be neutral but, in practice, disadvantages certain groups of people. Unlike direct discrimination, which is overt and deliberate, indirect discrimination is often unintentional. This makes it particularly complex for employers to identify and prevent. Nevertheless, the consequences for employees and businesses can be significant.
Seemingly harmless policies, such as dress codes, rigid shift patterns, or uniform performance targets, can put employees with certain protected characteristics at a disadvantage. For example, a ban on head coverings may prevent employees of particular faiths from observing their religion. Likewise, requiring all employees to work late shifts may disproportionately affect parents or carers.
If such practices are not identified and addressed, organisations risk breaching the Equality Act 2010, which prohibits indirect discrimination. For businesses, this can mean legal claims, financial penalties, reputational damage, and the loss of valued staff. For employees, it can lead to feelings of exclusion, reduced morale, and disengagement. In this article, we will explore the concept of indirect discrimination in depth, explain the legal framework, show how to identify and prevent it, and demonstrate how Kingfisher supports businesses in creating inclusive and compliant workplaces.
What is Indirect Discrimination?
Definition and Examples
Under the Equality Act 2010, indirect discrimination happens when a “provision, criterion or practice” is applied to everyone but puts those with a protected characteristic at a particular disadvantage compared to others. This disadvantage is not always obvious, which is why employers must be vigilant in monitoring their workplace policies.
Take, for example, a uniform policy that prohibits headwear. While the rule applies equally to all employees, it can prevent Sikh or Muslim employees from wearing turbans or hijabs. Another example would be the requirement for all staff to work full-time hours or rotating shifts. While neutral on paper, this may disproportionately disadvantage women, who are more likely to have primary childcare responsibilities, or carers who balance work with care obligations. Similarly, setting uniform performance targets without considering reasonable adjustments may disadvantage employees with disabilities who require additional support or flexibility.
What makes indirect discrimination particularly challenging is that employers may not realise they are discriminating. A rule designed to increase efficiency, improve brand image, or create consistency may still fall foul of the law if its effect is unfairly detrimental to a protected group.
Legal Framework: The Equality Act 2010
The Equality Act 2010 brought together and strengthened previous anti-discrimination laws in the UK. It clearly defines the characteristics that are legally protected – such as race, religion or belief, disability, sex, and age – and makes it unlawful for employers to adopt practices that indirectly disadvantage individuals with these characteristics.
Employers cannot defend indirect discrimination simply by arguing that it was unintentional. However, they may be able to justify a policy if it can be shown to be a “proportionate means of achieving a legitimate aim.” This legal test is difficult to meet and requires employers to show that the business reason behind the policy is genuine, necessary, and balanced against the discriminatory effect. For example, health and safety requirements may legitimately restrict certain practices if the restriction is essential to protecting staff.
Employers must therefore be proactive in assessing the fairness of their policies and willing to adjust them to avoid discrimination claims.
Impact of Indirect Discrimination
The effects of indirect discrimination ripple through the workplace. Employees who feel disadvantaged may lose trust in their employer, leading to disengagement, higher turnover, and in some cases, formal grievances or tribunal claims. For organisations, beyond legal costs, there is the reputational risk of being seen as unfair or exclusionary, which can undermine recruitment and retention. In a competitive market, businesses cannot afford to overlook the importance of inclusivity.
Identifying Indirect Discrimination in the Workplace
Policy Review and Risk Assessment
A systematic review of workplace policies is essential to uncover indirect discrimination. Employers should begin by mapping all policies, procedures, and practices that govern daily work. These include dress codes, working hours, performance measures, recruitment criteria, and promotion processes.
Once identified, each policy should be assessed to determine whether it could disadvantage a particular group. For example, do working-hour requirements unfairly affect carers? Does a promotion policy unintentionally favour one gender over another? Consultation with employees is crucial at this stage, as staff often highlight issues that management may overlook. Employee surveys, focus groups, and one-to-one conversations can provide valuable insight into how policies are experienced in practice.
Analysing HR data is another effective way of identifying patterns. Disproportionate outcomes in recruitment, promotions, or turnover rates can signal the presence of indirect discrimination. For instance, if significantly fewer women progress into management roles despite equal representation at entry level, the promotion process may be biased, even unintentionally.
Unconscious Bias in Decision-Making
Even when policies are carefully written, unconscious bias can influence how they are applied. Unconscious bias refers to the automatic judgements and stereotypes that shape decisions without individuals realising it. In recruitment, for example, hiring managers may gravitate toward candidates who share their background or experiences. In performance reviews, stereotypes about age, gender, or family commitments may subtly influence outcomes.
Recognising unconscious bias is the first step in addressing it. Employers should invest in training programmes that raise awareness and provide strategies for challenging biased thinking. Structured recruitment processes can also help – for example, using standardised interview questions and scoring systems reduces subjectivity. Diverse interview panels introduce different perspectives, making biased decisions less likely. Monitoring and reviewing recruitment and promotion outcomes ensures that unconscious bias is not skewing opportunities.
Reasonable Adjustments
Employers have a duty under the Equality Act to make reasonable adjustments to reduce disadvantages faced by disabled employees. These adjustments are often simple but make a significant difference. Offering flexible working hours can help employees with medical appointments or caring responsibilities. Providing assistive technology, such as screen readers or adapted keyboards, enables employees with visual or mobility impairments to perform effectively. Adjusting targets or deadlines for employees managing long-term conditions ensures fair treatment without compromising standards.
Reasonable adjustments not only reduce indirect discrimination but also demonstrate an employer’s commitment to fairness and inclusion. Employees who feel supported are more likely to be engaged, productive, and loyal.
Inclusive Policy Development
To prevent indirect discrimination from arising, organisations should develop policies with inclusivity in mind. This involves conducting equality impact assessments before introducing new policies to evaluate how they might affect different groups. Policies should not remain static; regular reviews are essential to ensure they continue to reflect the needs of a diverse workforce.
Employers should also align their policies with broader diversity, equity, and inclusion (DEI) initiatives. This ensures consistency and reinforces a cultural commitment to fairness. Importantly, employees from underrepresented groups should be consulted in the policy development process. Their input ensures that policies are grounded in lived experience, making them more practical and inclusive.
Industry-Specific Challenges and Solutions
Indirect discrimination can manifest differently across industries. Recognising these sector-specific challenges allows employers to tailor their approaches.
In retail and hospitality, rigid shift patterns and uniform requirements can create barriers. Employees may struggle to observe religious holidays or wear attire required by their faith. Employers can address this by introducing more flexible scheduling, allowing staff to swap shifts, and developing inclusive dress codes that accommodate religious expression while maintaining brand standards.
In construction and trades, health and safety requirements often necessitate protective clothing or equipment. However, standard PPE may not be suitable for everyone, such as headgear that does not accommodate turbans. Employers should ensure that alternative, compliant equipment is available so that safety standards are maintained without excluding certain groups.
In education and training, recruitment and promotion processes can unintentionally disadvantage particular demographics. For instance, informal networking may play too strong a role in progression. Employers should focus on bias-free recruitment methods, transparent promotion criteria, and clear professional development pathways.
In technology and IT services, policies that favour full-time, on-site work may indirectly disadvantage employees who need flexibility due to disability or caring responsibilities. Employers can adopt hybrid and remote working models, invest in accessible digital platforms, and encourage flexible working arrangements to accommodate diverse needs.
How Kingfisher Can Help with Indirect Discrimination in the Workplace
Kingfisher Professional Services helps employers prevent indirect discrimination and create inclusive, compliant workplaces through tailored HR and legal support:
- Policy Reviews & Compliance Checks: We audit workplace policies and practices to identify risks of indirect discrimination, advise on practical solutions, and ensure compliance with the Equality Act 2010.
- Workplace Audits & Risk Assessments: Our consultants conduct detailed assessments of your procedures and documentation, highlighting gaps and opportunities for improvement to build fairer processes.
- Bespoke Training & Leadership Development: We deliver tailored training programmes covering unconscious bias, anti-discrimination strategies, and inclusive leadership, equipping line managers and senior teams with the knowledge to promote fairness.
- 24/7 Advisory Support: Discrimination issues can arise unexpectedly. Our experts are available around the clock to guide you through employee grievances, policy reviews, or discrimination claims with immediate, practical advice.
- HR & Legal Expertise Combined: By offering both HR consultancy and legal advisory services, we deliver solutions that are legally robust and operationally practical, tailored to the needs of SMEs and larger organisations alike.
With Kingfisher as your partner, you can embed fairness into workplace culture, protect against legal risk, and ensure every employee feels valued and supported.
Conclusion
Indirect discrimination is not always easy to spot, but the consequences of overlooking it can be serious. Neutral policies that unintentionally disadvantage certain groups undermine fairness, damage morale, and expose employers to legal and reputational risks. By conducting regular audits, addressing unconscious bias, making reasonable adjustments, and embedding inclusivity into policy development, businesses can prevent indirect discrimination before it takes root.
The benefits of inclusive workplaces are clear: improved employee morale, stronger retention, access to a wider pool of talent, and a positive organisational reputation. Compliance with the Equality Act 2010 not only protects businesses legally but also positions them as employers of choice in an increasingly diverse society.
At Kingfisher, we are committed to supporting businesses with tailored advice, training, and ongoing consultancy to ensure equality, diversity, and inclusion are at the heart of workplace practices. By working together, we can help you create policies and cultures that are fair, inclusive, and legally compliant.