Indirect Discrimination in Employment

The story of 18-year-old Alanah Thompson French has been all over the news recently after she was rejected from a job as a trainee lettings negotiator at haart in Nottingham on the basis that her car was not under 10 years old. 

Most employers, and job applicants, are aware that rejecting someone for a job because of their age may amount to unlawful age discrimination. But can a job applicant be rejected because of the car they drive? 

Maybe – it depends on whether an employer can justify it.

The Equality Act 2010

The Equality Act 2010 protects certain aspects of a person’s identity, known as a ‘protected characteristic’. The protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, region or belief, sex and sexual orientation. An employee, or job applicant, cannot be treated less favourably because of a protected characteristic.  In Alanah’s case, though, she wasn’t treated less favourably because of her age, but because of the age of her car, so on the face of it, she was not discriminated against. 

However, the Equality Act 2010 also places restrictions on an employer having a policy that applies to everyone, but that puts those with a protected characteristic at a substantial disadvantage compared to those without that protected characteristic.  For example, a policy that puts employees under the age of 25 at a substantial disadvantage compared to employees over 25.  An employer who has such a policy will need to be able to justify why that policy is necessary for that employer’s business.  If they cannot justify it, the policy may be indirectly discriminatory and leave the employer open to claims - and negative publicity. 

Having a policy that job applicants will be rejected if they do not have a new car could amount to indirect discrimination.  This is because younger job applicants may be less likely to have a new car than older job applicants - it can be harder for younger drivers to secure finance and car insurance for a newer vehicle - and, therefore, are more likely to be rejected for the role than older applicants.  An employer applying a policy that disadvantages younger applicants in this way would need be able to justify it.  In Alanah’s case, haart sought to justify the policy on health and safety grounds; haart said that as employees are expected to use their personal vehicles to carry out their role, using an old car, that is more likely to have mechanical problems, creates a health and safety risk. Consideration would also need to be given to whether that health and safety risk could be mitigated without having a ‘no old car’ policy, such as by organising a car assessment for candidates at the final stages of the interview process.

It is understandable that employers will want to have policies in place, for job applicants and employees, that reflect their organisational culture, values and vision.  In most cases, employers will not intend for a policy to cause indirect discrimination. However, lack of intention is not a defence.  Employers should, therefore, consider whether any of their policies might indirectly negatively impact on certain groups and, if so, ensure that they can demonstrate why that policy is justified in their particular business context. 

How can we help?

If you need support with indirect discrimination or any other employment law matters in Stoke, get in touch with our dedicated employment law solicitors.

Contact us by calling 0178 232 4454, complete our contact form, or send us an email via info@smithpartnership.co.uk.

We also have expert employment law solicitors at our offices across the East Midlands, in Burton, Derby, Leicester and Swadlincote.