This may now be what the future holds due to a recent landmark decision by the European Court of Justice which could significantly widen the scope for raising actions in indirect discrimination cases.
Liam Entwistle, chief executive of Wright, Johnston & Mackenzie LLP explains: “In equality legislation, there’s an important distinction between direct and indirect discrimination. It’s unlawful to have a provision which puts people at a disadvantage because of what’s known as ‘protected characteristics.’
“These include race, religion, age, disability, gender, and sexual orientation. However, the ruling may now extend indirect discrimination protection to people who don’t have a protected characteristic, where they are affected along with someone who does. All employers will be able to do to avoid claims is to ensure that they can justify the provision.”
So let’s return to the example of an employer who requires its employees to work on the fourth floor of a building but there is no lift, and no disabled access.
“In the case of a chronically overweight person who finds it difficult to climb stairs to their place of work,” says Mr Entwistle, “having to climb stairs could indirectly discriminate against anyone with a protected characteristic of disability. If it does, the chronically overweight person could also claim protection, although they do not have a disability as legally defined. Employers, service providers and landlords will be prejudiced. Everyone else may find they have claims they didn’t think they had. Discrimination claims at tribunals do not have any upper cap in terms of the amount being claimed for.”
So what is his advice for employers? “Review all practices in your workplace. Try and make sure they don’t indirectly discriminate, or make sure you can justify them – and get good advice”.
• Liam Entwistle is an accredited workplace mediator and a member of the Law Society of Scotland Employment Law Group. Wright, Johnston & Mackenzie is an independent Scottish law firm with offices in Edinburgh, Glasgow and Inverness.