(1)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 characteristic of B's.
(2)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)A applies, or would apply, it to persons with whom B does not share the characteristic,
(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c)it puts, or would put, B at that disadvantage, and
(d)A cannot show it to be a proportionate means of achieving a legitimate aim.
(3)The relevant protected characteristics are—
Cases considering section 19 261
[2025] UKSC 16 · 16 April 2025Interprets
Indirect discrimination protects groups sharing a protected characteristic against unjustified particular disadvantage. Biological sex is necessary for coherent group analysis. (see paras [144]-[146]; [258]-[261])
[2017] UKSC 72 · 1 November 2017
The court accepted that the policies could place transgender customers at a particular disadvantage, but held that the disadvantage was justified because the policies were proportionate means of achieving legitimate aims (see para [44]).
The Special Customer Records policy was a proportionate means of achieving a legitimate aim and therefore satisfied the statutory justification requirement (see para [44]).
[2017] UKSC 51 · 26 July 2017Interprets
The provision supplied the test for indirect discrimination. The higher type B fees created a disparate impact upon women, and their justification had not been established (see paras [124]-[131]).
Indirect discrimination depends upon applying a provision, criterion or practice which is discriminatory in relation to a protected characteristic (see paras [124]-[126]).
A provision, criterion or practice is indirectly discriminatory where it creates comparative group and individual disadvantage and cannot be justified as a proportionate means of achieving a legitimate aim (see paras [124]-[126]).
The relevant provision, criterion or practice must apply to people both with and without the protected characteristic. The court was inclined to treat the higher fees for all type B claims as the appropriate practice (see para [133]).
The comparative disadvantage is then assessed for the subgroup sharing the protected characteristic. Women bringing type B claims experienced a disparate impact (see paras [125]; [133]).
The person applying the provision, criterion or practice must justify that practice itself as a proportionate means of achieving a legitimate aim. The higher type B fees had not been shown proportionate (see paras [126]-[131]).
241 more judgments, and what each says about section 19, are in the
case-law panel in the full Act.
77.This section defines indirect discrimination for the purposes of the Act.
78.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. 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.
79.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 discrimination.
80.Indirect discrimination applies to all the protected characteristics, apart from pregnancy and maternity.
81.This section largely replaces similar provisions in previous 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. However, the extension of indirect discrimination to disability is new, coming after consultation following the judgment of the House of Lords in the case of London Borough of Lewisham v Malcolm [2008] UKHL 43, which concerned the interpretation of the provision on disability-related discrimination in the Disability Discrimination Act 1995.