Clause 18: Indirect discrimination
84. This clause defines indirect discrimination for the purposes of the Bill.
85. Indirect discrimination occurs when a policy which applies in the same way for
everybody has an effect which particularly disadvantages people with a protected
characteristic because they have that characteristic. Where a particular group is disadvantaged
in this way, a person in that group is indirectly discriminated against if he or she is put at that
disadvantage, unless the person applying the policy can justify it.
86. Indirect discrimination can also occur when a policy would put a person at a
disadvantage if it were applied. This means, for example, that where a person is deterred from
doing something, such as applying for a job or taking up an offer of service, because a policy
which would be applied would result in his or her disadvantage, this may also be indirect
87. Indirect discrimination applies to all the protected characteristics, apart from
88. This clause replaces similar provisions in current legislation. It applies the EU
definition of indirect discrimination, replacing pre-existing domestic definitions in the Sex
Discrimination Act 1975 and the Race Relations Act 1976, to ensure uniformity of protection
across all the protected characteristics in all areas where it applies.
• A woman is forced to leave her job because her employer operates a practice that staff
must work in a shift pattern which she is unable to comply with because she needs to
look after her children at particular times of day, and no allowances are made because
of those needs. This would put women (who are shown to be more likely to be
responsible for childcare) at a disadvantage, and the employer will have indirectly
discriminated against the woman unless the practice can be justified.
• An observant Jewish engineer who is seeking an advanced diploma decides (even
though he is sufficiently qualified to do so) not to apply to a specialist training
company because it invariably undertakes the selection exercises for the relevant
course on Saturdays. The company will have indirectly discriminated against the
engineer unless the practice can be justified.
Clause 19: Adjustments for disabled persons
89. This clause defines what is meant by the duty to make reasonable adjustments for the
purposes of the Bill and lists the Parts of the Bill which impose the duty and the related
Schedules which stipulate how the duty will apply in relation to each Part. The duty comprises
three requirements which apply where a disabled person is placed at a substantial disadvantage
A person (A) discriminates against another (B) if A applies to B a provision,
criterion or practice which is discriminatory in relation to a relevant protected
For the purposes of subsection (1), a provision, criterion or practice is
discriminatory in relation to a relevant protected characteristic of B’s if—
A applies, or would apply, it to persons with whom B does not share
it puts, or would put, persons with whom B shares the characteristic at
a particular disadvantage when compared with persons with whom B
it puts, or would put, B at that disadvantage, and
A cannot show it to be a proportionate means of achieving a legitimate
The relevant protected characteristics are—
marriage and civil partnership;
Adjustments for disabled persons
Duty to make adjustments
Where this Act imposes a duty to make reasonable adjustments on a person,
this section, sections 20 and 21 and the applicable Schedule apply; and for those
purposes, a person on whom the duty is imposed is referred to as A.
in comparison to non-disabled people. The first requirement covers changing the way things
are done (such as changing a practice), the second covers making changes to the built
environment (such as providing access to a building), and the third covers providing auxiliary
aids and services (such as providing special computer software or providing a different
90. This clause replaces similar provisions in the Disability Discrimination Act 1995.
However, the Bill makes some changes to provide consistency across the reasonable
adjustment provisions. It contains only one threshold for the reasonable adjustment duty –
“substantial disadvantage” – in place of the two thresholds in the Disability Discrimination
Act 1995. It also reflects current practice by applying the third requirement explicitly to
employment. And it introduces consistency of language by referring to “provision, criterion or
practice” rather than “practice, policy or procedure” used in some provisions in the Disability
• A utility company knows that significant numbers of its customers have a sight
impairment and will have difficulty reading invoices and other customer
communications in standard print, so must consider how to make its communications
more accessible. As a result, it might provide communications in large print to
customers who require this.
• A bank is obliged to consider reasonable adjustments for a newly recruited financial
adviser who is a wheelchair user and who would have difficulty negotiating her way
around the customer area. In consultation with the new adviser, the bank rearranges the
layout of furniture in the customer area and installs a new desk. These changes result
in the new adviser being able to work alongside her colleagues.
• The organiser of a large public conference knows that hearing impaired delegates are
likely to attend. She must therefore consider how to make the conference accessible to
them. Having asked delegates what adjustments they need, she decides to have a
palantypist and an induction loop to make sure that the hearing impaired delegates are
not substantially disadvantaged.
Clause 20: Failure to comply with duty
91. This clause has the effect that a failure to comply with any one of the reasonable
adjustment requirements amounts to discrimination against a disabled person to whom the
duty is owed. It also provides that, apart from under this Bill, no other action can be taken for
failure to comply with the duty.
The duty comprises the following three requirements.
The first requirement is a requirement, where a provision, criterion or practice
of A’s puts a disabled person at a substantial disadvantage in relation to a
relevant matter in comparison with persons who are not disabled, to take such
steps as it is reasonable to have to take to avoid the disadvantage.
The second requirement is a requirement, where a physical feature puts a
disabled person at a substantial disadvantage in relation to a relevant matter in
comparison with persons who are not disabled, to take such steps as it is
reasonable to have to take to avoid the disadvantage.
The third requirement is a requirement, where a disabled person would, but
for the provision of an auxiliary aid, be put at a substantial disadvantage in
relation to a relevant matter in comparison with persons who are not disabled,
to take such steps as it is reasonable to have to take to provide the auxiliary aid.
A reference in section 20 or 21 or an applicable Schedule to the first, second or
third requirement is to be construed in accordance with this section.
A reference in this section, section 20 or 21 or an applicable Schedule (apart
from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to—
a feature arising from the design or construction of a building;
a feature of an approach to, exit from or access to a building;
a fixture or fitting, or furniture, furnishings, materials, equipment or
other chattels, in or on premises;
any other physical element or quality.
A reference in this section, section 20 or 21 or an applicable Schedule to an
auxiliary aid includes a reference to an auxiliary service.
A reference in this section or an applicable Schedule to chattels is to be read, in
relation to Scotland, as a reference to moveable property.
The applicable Schedule is, in relation to the Part of this Act specified in the
first column of the Table, the Schedule specified in the second column.
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Part 3 (services and public functions)
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Each of the Parts mentioned above
Failure to comply with duty
A failure to comply with the first, second or third requirement is a failure to
comply with a duty to make reasonable adjustments.
92. This clause replaces similar provisions in the Disability Discrimination Act 1995.
• An employee develops carpal tunnel syndrome which makes it difficult for him to use
a standard keyboard. The employer refuses to provide a modified keyboard or voice-
activated software which would overcome the disadvantage. This could be an
unlawful failure to make a reasonable adjustment which would constitute
• A private club has a policy of refusing entry to male members not wearing a collar and
tie for evening events. A member with psoriasis (a severe skin condition which can
make the wearing of a collar and tie extremely painful) could bring a discrimination
claim if the club refused to consider waiving this policy for him.
• A visually-impaired prospective tenant asks a letting agent to provide a copy of a
tenancy agreement in large print. The agent refuses even though the document is held
on computer and could easily be printed in a larger font. This is likely to be an
unlawful failure to make a reasonable adjustment which would constitute
93. This clause provides a power for a Minister of the Crown to make regulations about a
range of issues relating to the reasonable adjustment duty, such as the circumstances in which
a particular step will be regarded as reasonable. This power also allows amendment of the
Schedules referred to in clause 19(10).
94. This clause replaces similar provisions in the Disability Discrimination Act 1995.
• Regulations could be made to clarify what is and what is not included within the
meaning of a “provision, criterion or practice” if, for example, research indicated that
despite statutory codes of practice there was quite a high level of uncertainty among
employers and service providers about the extent of the duty and how it applied.
Clause 22: Comparison by reference to circumstances
95. This clause provides that like must be compared with like in cases of direct or indirect
discrimination or, in the case of disability, the failure to make reasonable adjustments. The
treatment of the claimant must be compared with that of an actual or a hypothetical person –
the comparator – who does not share the same protected characteristic as the claimant but who
A discriminates against a disabled person if A fails to comply with that duty in
A provision of an applicable Schedule which imposes a duty to comply with
the first, second or third requirement applies only for the purpose of
establishing whether A has contravened this Act by virtue of subsection (2); a
failure to comply is, accordingly, not otherwise actionable.
Regulations may prescribe—
matters to be taken into account in deciding whether it is reasonable for
A to take a step for the purposes of a prescribed provision of an
descriptions of persons to whom the first, second or third requirement
Regulations may make provision as to—
circumstances in which it is, or in which it is not, reasonable for a
person of a prescribed description to have to take steps of a prescribed
what is, or what is not, a provision, criterion or practice;
things which are, or which are not, to be treated as physical features;
things which are, or which are not, to be treated as alterations of
things which are, or which are not, to be treated as auxiliary aids.
Provision made by virtue of this section may amend an applicable Schedule.
Comparison by reference to circumstances
On a comparison of cases for the purposes of section 13, 18 or 19, there must be
no material difference between the circumstances relating to each case.
is (or is assumed to be) in not materially different circumstances from the claimant. Those
circumstances can include their respective abilities where the claimant is a disabled person.
96. The clause also makes clear that a civil partner who is treated less favourably than a
married person in similar circumstances is discriminated against because of sexual orientation.
97. The clause replicates similar provisions in current legislation.
• A blind woman claims she was not short listed for a job involving computers because
the employer wrongly assumed that blind people cannot use them. An appropriate
comparator is a person who is not blind – it could be a non-disabled person or someone
with a different disability – but who has the same ability to do the job as the claimant.
• A Muslim employee is put at a disadvantage by his employer’s practice of not
allowing requests for time off work on Fridays. The comparison that must be made is
in terms of the impact of that practice on non-Muslim employees in similar
circumstances to whom it is (or might be) applied.
Clause 23: References to particular strands of discrimination
98. This clause makes clear what is meant by references to the types of discrimination
referred to in the Bill, so that references elsewhere in the Bill to age, marriage and civil
partnership, race, religious or belief-related, sex or sexual orientation discrimination, include
references to both direct and indirect discrimination because of each of those characteristics
99. As well as direct and indirect discrimination, references to disability discrimination
also include references to discrimination arising from disability and to a failure to comply with
a duty to make reasonable adjustments; and references to gender reassignment discrimination
also include discrimination within clause 15 (gender reassignment discrimination: cases of
absence from work). Finally, references to pregnancy and maternity discrimination have the
meanings derived from sections 16 and 17.