Liam Healy & Associates

chartered occupational psychologists

Direct and Indirect Discrimination : A Discussion

There are two types of discrimination recognised by employment law in the UK - direct discrimination and indirect discrimination.   Discrimination can be based on a range of characteristics. If differences in selection ratings for different groups are not reflected in work performance, then the systems then the system may be discriminatory.

Direct Discrimination  occurs when a person treats another less favourably than they would a person from a different group. It is not necessary to prove that direct discrimination is intentional or motivated by prejudice. Ignorance of selection theory, or good selection practise is no defence. This is very similar to the US notion of adverse or disparate treatment.  

Indirect Discrimination  occurs when selection tools or procedures have a different effect on people from a particular group which is not then borne out by performance at work. Again, it is not necessary to prove that indirect discrimination in intentional. This is very similar to the US notion of adverse or disparate impact. 

To establish indirect discrimination four questions need to be asked:  

  1. Has the selection procedure been applied to all candidates regardless of group?
  2. Does the procedure exclude disproportionately more people from a particular group than people who are not from that group?
  3. Is being excluded to the disadvantage of people from a particular group?
  4. Can the employer prove that the need for the rule which excludes them overrides the disparate effect?

If we can answer ‘yes’ to the first three questions and ‘no’ to the last,  then we are committing a discriminatory act. Whether we intended to or not is irrelevant. This places the onus on the selector to ensure the tools used are valid and reliable.  

Selection must be based on merit and not on race or sex. Section 48 of the Sex Discrimination Act states; It is not lawful to try to correct an imbalance of the sexes in the workforce or any part of it by seeking to operate a quota system.   Sections 37 and 38 of the Race Relations Act make a  similar point.

One way of addressing a perceived imbalance is by positive action. The idea of positive action is very often incorrectly defined. It does not mean:  

  • Selecting a  certain number of people from an under-represented group, irrespective of merit, to give an organisation a better public relations image while at the same time ignoring the problems with the selection procedure which led to the imbalance in the first place.  
  • Selecting purely on the basis of race or gender to correct an imbalance unless it can be shown that being of a particular sex or race is a Genuine Occupational Qualification e.g. selecting a man to play Father Christmas may be an example, but instances where this is the case are very rare and it is difficult to think of many.    

Positive action applies not to selection but to the application process that precedes it and the training that follows. It is lawful to encourage applications from under-represented groups, and to provide special training opportunities for them once they have been selected, but selection itself must be based purely on job related factors.