Most AI screening and scoring tools apply the same rule to everyone: the same model, the same cut-off score, the same keywords. That sameness does not settle the legal question. In Great Britain, a rule that is applied to everyone can still be indirect discrimination if it puts people with a protected characteristic at a particular disadvantage and the employer cannot justify it.
The short answer: under section 19 of the Equality Act 2010, an employer discriminates if it applies a provision, criterion or practice that puts people who share a protected characteristic at a particular disadvantage, puts the individual at that disadvantage, and the employer cannot show it to be a proportionate means of achieving a legitimate aim (s19).
The parts of the test
- A provision, criterion or practice: the employer applies it, or would apply it, to people who do not share the characteristic as well as to those who do (s19(2)(a)). A screening model, a scoring threshold or a rule about which candidates are passed on can be one.
- Group disadvantage: it puts, or would put, people who share the characteristic at a particular disadvantage compared with people who do not (s19(2)(b)).
- Individual disadvantage: it puts, or would put, the person bringing the claim at that disadvantage (s19(2)(c)).
- Justification: the employer cannot show it to be a proportionate means of achieving a legitimate aim (s19(2)(d)).
The characteristics covered are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation (s19(3)). Pregnancy and maternity is not in that list.
Same disadvantage: section 19A
Since 1 January 2024, section 19A also covers a person who does not share the characteristic but is put at substantively the same disadvantage as people who do, where the employer cannot show the provision, criterion or practice is a proportionate means of achieving a legitimate aim (s19A(1)). It covers the same list of characteristics (s19A(2)).
Comparing like with like: section 23
On a comparison for section 19 or 19A, there must be no material difference between the circumstances relating to each case (s23(1)). So the comparison is between groups whose circumstances are otherwise alike, not between any two sets of applicants.
Where AI models come in
- Models trained on past decisions: a model that learns from who was hired or promoted before can carry the patterns in those decisions into new ones, without any rule that mentions a protected characteristic.
- Proxies: inputs such as career gaps, postcodes, schools, hours available or speech and writing style can be linked to a characteristic such as sex, race, age or disability. For career gaps and availability scoring, see sex discrimination at work.
- Cut-offs and rankings: the point at which a score passes or fails a candidate is itself a choice that can put one group at a disadvantage.
- Format of the assessment: timed online tests, video interviews and game-based tasks can disadvantage some groups, for example some disabled candidates; see also reasonable adjustments.
Buying the tool from a vendor does not change who applies it. When the employer uses the model to decide who goes forward, the employer is applying the provision, criterion or practice and is the one that has to justify it.
Justification in practice
The Act does not list legitimate aims. An employer relying on one, such as finding candidates with the skills a job needs, has to show that using the model in the way it did was a proportionate means of achieving that aim. Questions an employer can ask itself: does the score measure something the job actually needs; has the tool been checked for different pass rates between groups; could a less discriminatory step, such as a different cut-off or a human review, meet the same aim?
Practical steps
- Employers: ask the vendor what data the model was trained on and what it measures, monitor outcomes by group where you lawfully can, review cut-offs, and keep a record of why the tool is used and what alternatives were considered. For lawful steps to encourage under-represented groups, see positive action.
- Candidates and workers: keep the job advert, the rejection and any score you were given, note what the tool asked you to do, and ask the employer what criteria were applied. See time limits and the burden of proof for when a claim must be made.
For filters that apply a characteristic itself, see direct discrimination. For the Act's wider rules at work, see AI and the Equality Act 2010. Where the disadvantage comes from something arising from a disability, see discrimination arising from disability.
Public authorities also have a duty to have due regard to equality when they use such tools; see the public sector equality duty and AI.
This page covers Great Britain and is general information on the law as at 2 November 2026, not legal advice.
Questions and answers
What is indirect discrimination?
Under section 19 of the Equality Act 2010, an employer discriminates if it applies a provision, criterion or practice that puts people sharing a protected characteristic at a particular disadvantage, puts the individual at that disadvantage, and it cannot show the provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
Can an AI screening tool be indirect discrimination if it treats everyone the same?
It can. Section 19 applies to a provision, criterion or practice that is applied to people who do and do not share the characteristic, where it puts those who share it at a particular disadvantage and the employer cannot justify it.
Which characteristics does section 19 cover?
Age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation.
What does section 19A add?
Since 1 January 2024, section 19A covers a person who does not share the characteristic but is put at substantively the same disadvantage as people who do, unless the employer can show the provision, criterion or practice is a proportionate means of achieving a legitimate aim.