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Indirect Discrimination

A person discriminates against a women if he applies to her a provision criteria or practice which would apply equally to a man but which is such that it would be a detriment to a considerably larger proportion of women than of men and which he cannot show to be justified in respect of the sex of a person to whom it is applied and which is to her detriment.

Let’s look at some examples which lie in situations of childcare.

This example would also relate to the issue of flexible working.

In order to escape liability for indirect discrimination, the employer has to show that firstly the condition or the procedure is necessary and that it is required and then that it is justified.

I will give you an example in the case of Briggs in which a female teacher was required as part of her Contract of Employment to take part in school games out of school hours. This affected her because she was a mother and she had childcare responsibilities outside school hours. Again, under the primary carer principal, the Tribunal considered this and took the view that it was a reasonably necessary requirement for teachers to be able to work outside their contracted hours after school and therefore it was considered that there was no indirect discrimination under the grounds of justification. Say this same scenario occurred in a factory because the boss wanted a more flexible work force. Would this be justifiable? I think not yet it was in a school. Why?