Lesson 3 – Indirect Discrimination

3.1 What is indirect discrimination?

Indirect discrimination may arise where a provision, criterion or practice:

• Is applied, or would be applied, to everyone;
• Places people sharing a protected characteristic at a particular disadvantage;
• Places the individual concerned at that disadvantage; and
• Cannot be shown to be a proportionate means of achieving a legitimate aim.

A rule does not have to be deliberately discriminatory. A neutral-looking policy can produce an unlawful disadvantage even if no one intended that result.

3.2 What is a provision, criterion or practice?

This can include:

• A written policy;
• An informal office rule;
• A standard application requirement;
• A usual way of arranging appointments;
• A document requirement;
• A communication method;
• A condition applied to every applicant; or
• A procedure followed because “that is how we always do it.”

3.3 Property-sector examples

A potentially indirectly discriminatory practice might include:

• Requiring every enquiry to be made by telephone;
• Offering viewings only at times that create a particular disadvantage;
• Requiring all documents to be completed online;
• Requiring a particular document where lawful alternatives exist;
• Using unnecessarily restrictive affordability criteria;
• Insisting that every customer attends the office personally;
• Applying an inflexible no-exceptions communication policy; or
• Using automated systems without checking for discriminatory outcomes.

3.4 Legitimate aims

A legitimate aim may include:

• Protecting health and safety;
• Preventing fraud;
• Verifying identity;
• Assessing affordability;
• Complying with legal requirements;
• Protecting client money;
• Managing genuine property suitability concerns; or
• Delivering an efficient service.

A legitimate aim does not automatically make the practice lawful. The measure should also be proportionate.

3.5 Proportionality

Staff and managers should ask:

• What is the purpose of the rule?
• Is the rule genuinely necessary?
• Does it disadvantage a particular group?
• Is there a less discriminatory way to achieve the same objective?
• Can an exception or adjustment be made?
• What evidence supports the decision?
• Has the effect on the customer been properly considered?

Example

MyEstate requires applicants to provide evidence of identity and eligibility. That is a legitimate requirement.

However, refusing every applicant who cannot use a particular digital verification platform may not be proportionate if another lawful verification route is available.

Lesson 3 key point

Applying the same rule to everyone can still be discriminatory if it creates an unjustified disadvantage for a protected group.