What is indirect racial discrimination?

Indirect racial discrimination may fall into one of two categories depending on the racial grounds of discrimination. The first is on grounds of colour or nationality, under the original definition in the Race Relations Act.

The second is on grounds of race, ethnic or national origin. This was introduced by the Race Relations Act (Amendment) Regulations 2003 to comply with the EC Race Directive.

On grounds of colour or nationality
This occurs when an apparently non-discriminatory requirement or condition which applies equally to everyone:

• can only be met by a considerably smaller proportion of people from a particular racial group; and
• which is to the detriment of a person from that group because he or she cannot meet it; and
• the requirement or condition cannot be justified on non-racial grounds.

For example, a rule that employees or pupils must not wear headgear could exclude Sikh men and boys who wear a turban, or Jewish men or boys who wear a yarmulka, in accordance with practice within their racial group.

On grounds of race, ethnic or national origin
This occurs when a provision, criterion or practice which, on the face of it, has nothing to do with race and is applied equally to everyone:

• puts or would put people of the same race or ethnic or national origins at a particular disadvantage when compared with others; and
• puts a person of that race or ethnic or national origin at that disadvantage; and
• cannot be shown to be a proportionate means of achieving a legitimate aim.

The definition of indirect discrimination on the grounds of race, ethnic or national origin is in general terms broader than on the grounds of colour or nationality and as a result it may be easier to establish racial discrimination than previously on that ground.