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Indirect Discrimination – Where’s Your Proof?

Whether you are an employee or an employer, discrimination (in any form) is always a very difficult matter to address.

It is often the case that there will be little or no evidence of direct discrimination and therefore cases are generally based around the actions or omissions or the interpretation of the same. This is most evident in claims for indirect discrimination where an employee seeks to rely upon a provision criterion practice (“PCP”) that has disadvantaged him/her or the group as a whole.

It is however the case that an employee will need to provide proof that the provision criteria practice has actually disadvantaged the group or indeed the Claimant himself. This has been upheld in the Court of Appeal’s decision in the UK Border Agency –v- Essop.

In this case the Court of Appeal held that it was impossible to prove a group disadvantage without also showing why the claimed disadvantage is said to have arisen.

This confirmed that it is not possible to prove disadvantage to a group in the abstract and, therefore, such an allegation requires evidence. It is also important to bear in mind that Claimants who wish to rely upon a disadvantage imposed by a PCP will need to rely upon statistics as evidence to support how in fact they personally were placed at a disadvantage in order to succeed in any claim.

As with any discrimination case the burden of proof is upon the Claimant in the first instance and only if the Claimant is able to prove facts from which, in the absence of any other explanation, an Employment Tribunal could determine that discrimination has in fact taken place would it then be for the employer to evidence that discrimination has not taken place.

Our Employment Law Solicitors are very aware of the difficulties facing employees and employers alike when it comes to equality in the workplace and are on hand to offer advice and guidance on how best to address any issues.