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Indirect discrimination will occur if a service provider applies a policy, condition or requirement across the board, which puts a service user who holds one or more of the protected characteristics listed in the Equality Act 2010, at a disadvantage.
An organisation may have a defence to a claim of indirect discrimination if it can objectively justify that the application of the policy, condition or requirement is a proportionate, (i.e. there is no reasonable alternative), way of achieving a legitimate aim (e.g. genuine health and safety reasons).
In order to utilise this defence, they would need to show clear evidence that it had conducted a balancing exercise between it’s business needs and the discriminatory effect and had given consideration to alternatives that might achieve the same result without being disadvantageous to the service user.
Where a complaint or claim of indirect discrimination is received from a client/service user, the best way to attempt to defend it, is to first investigate and gather as much evidence as possible to establish whether the business had knowledge of the individual’s disability and whether the alleged conduct has occurred. This could include the gathering and consideration of CCTV footage, audio recordings, witness statements of staff involved and all equality and diversity policies and training records available.
If you find that the conduct alleged has not occurred then all evidence in support of this can be referred to in any response to the complaint or claim.
If your investigation reveals that the acts complained of did take place, then you should undertake an immediate review of all preventative action which the business has taken to avoid service users being subjected to a detriment as a result of the alleged acts, and whether a balancing exercise between the business’ needs and the detriment to the individual was undertaken in the particular circumstances. If it can be proven that adequate measures have been taken by the business to establish a defence on these bases, then there is potential for this to be accepted by a County Court.
It is extremely important to seek specialist legal advice and assistance in dealing with complaints or claims of this nature to minimise the potentially costly consequences of a claim and proceedings escalating. If you have been accused of indirect discrimination call our expert discrimination law team on 0161 696 6170.
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