Paul Fursman
Employment Advice
What is indirect discrimination?
Direct discrimination in the workplace can be easy to spot. Has an employee been treated less favourably because they have a protected characteristic? If the answer is yes, then this would be direct discrimination. However, spotting indirect discrimination can be more difficult.
Essentially, an employer indirectly discriminates where it treats all employees exactly the same way, but the policy or practice affects some employees differently because they have a protected characteristic. This can often give employers a headache, as they may think that in treating everyone exactly the same, they are doing the right thing. This may not, though, always be the case.
A recent Employment Tribunal case gives a helpful illustration as to how indirect discrimination works in practice. Jevgenijs Kovalkovs worked at a chicken wholesalers as a quality inspector. His employer, 2Sisters Food Group, had a Foreign Body Control Policy, which applied to all employees. Under the policy, the only jewellery that was acceptable was a plain wedding band. There was also an exception for religious jewellery, which was subject to a risk assessment.
Mr Kovalkovs was a member of the Russian Orthodox church. He wore a crucifix which had been given to him by his mother, and held a “deep and profound” meaning for him. In December 2019 he was told by his employer to remove the necklace as it presented a hazard. However at a meeting in January 2020 he was seen to be wearing the necklace again, and asked once more to remove it.
An on-the-spot risk assessment was then carried out, which concluded that the necklace could become tangled in machinery and could not, therefore, be worn. The risk assessment did not consider whether there was anything that could be done to reduce the risk (for example tucking the necklace inside clothing), nor that it was common practice for employees to wear lanyards which, presumably, carried the same risk.
Mr Kovalkovs refused to remove the necklace and was dismissed. He brought a claim in the Employment Tribunal agree that the Foreign Body Policy was indirectly discriminatory. Although the policy applied to all employees, regardless of faith, it affected Mr Kovalkovs to a greater extent because of his Russian Orthodox faith. He was awarded just over £22,000.
Esther Marshall, Employment Law specialist, said:
“It can be hard for employers to know what to do for the best. Some policies and procedures, which appear to be innocuous, because they apply to all employees, can in fact be discriminatory. A prime example of this is a neutral dress policy. If you are in any doubt as to whether your policies and procedures are at risk of being indirectly discriminatory, we can assist with a full review. In the unfortunate event that you receive a grievance or even a claim alleging discrimination, you should take legal advice at the earliest opportunity.”