William McParland

Indirect discrimination, in the employment context, is an interesting concept. It is, by its very nature, often hidden in employer practices and behaviours – referred to in section 19 Equality Act 2010 as a ‘provision, criterion or practice’ (PCP).

Take our recent case of Mrs R Kral v Nuffield Health (4105478/2023) as an example of how this concept works in practice.

Nuffield Health operated a PCP of accepting verbal resignations which applied to all employees and on the face of it appeared non-discriminatory. The claimant, who is a Polish national, worked for the Nuffield as a Housekeeper at its Edinburgh Clinic. She had a basic grasp of English but relied heavily on others to assist her with translation.

Having attended an interview for an external role in April 2023, the claimant had an informal, private conversation with Nuffield’s Head of Clinical Services (known as ‘JDP’) during which she asked if he would be willing to provide her with a reference if she was successful. JDP agreed to do so. He asked the claimant if she had discussed this with her manager. The claimant told JDP that she had not but would do so once she heard back about the interview (for which she was subsequently unsuccessful).

Around four weeks later, the claimant’s manager handed her a letter and told her that Nuffield Health was accepting her verbal resignation which she had given to JDP a month before. The claimant was shocked and told her manager that she had not resigned and that there must have been some misunderstanding. The claimant’s manager – and by extension Nuffield Health as the respondent – refused to give the claimant the benefit of any misunderstanding and treated her employment as terminated with notice.

Aggrieved about the treatment afforded to her, the claimant brought a claim against the respondent in the Employment Tribunal for, inter alia, indirect race discrimination.

The respondent’s pleaded defence was that the claimant resigned during the conversation she had with JDP. The respondent further maintained that there was no ambiguity or misunderstanding in the conversation and that the claimant made it clear that she was resigning for a new role.

The tribunal – on the facts – found that the practice of accepting verbal resignations, puts, or would put, those of Polish nationality and/or those who don’t have English as a first language at a particular disadvantage, in comparison with those whose first language is English.

The tribunal recognised that resignation is a significant step that requires a level of communication which is full and comprehensive – and that where someone does not have English as their first language, there is a significant risk of misunderstandings, with potentially serious consequences. The same risk is not present with those who have English as their first language. The tribunal also found that the practice put Mrs Kral at that particular disadvantage in that her communication with JDP was misinterpreted as being a resignation.

In the absence of any legitimate aim, there was no justification defence, and the claimant’s claim of indirect race discrimination was successful. Although a case at first instance, and determined on specific facts, it is noteworthy, and highlights that employer practices such as the practice at issue here, and the particular disadvantage, should be called out and can in certain circumstances amount to unlawful discrimination.

William McParland is an associate at Thompsons. This article first appeared in The Scotsman.