Contributors
In the conjoined cases of Essop and others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice [2017] UKSC 27, the Supreme Court has given two important judgments on the scope of indirect discrimination.
Background
Section 19 of the Equality Act 2010 (EqA) sets out the definition of indirect discrimination. It applies where an employer's provision, criterion or practice (PCP) puts people with a protected characteristic at a particular disadvantage when compared to others who do not have that characteristic. The protected characteristics under the EqA are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
Where indirect discrimination occurs, an employer will have a defence if it can show that the PCP was objectivity justified and there was a proportionate means of achieving a legitimate aim. In other words, to prove this defence, an employer will have to show that the requirement is necessary, and not merely convenient.
Facts
In the recent cases of Essop and Naeem the Supreme Court considered whether it is necessary for a claimant to prove the reason why a PCP puts or would put an affected group at a particular disadvantage when pursuing a claim of indirect discrimination, and whether that reason has to relate to the protected characteristic.
In Essop, the claimants were employed as immigration officers by the Home Office. In order to be promoted to the post of higher executive officer or above, staff had to pass a Core Skills Assessment test. This was a generic test for all positions at the same level, regardless of the particular role. Statistical evidence showed that candidates who were from a black, minority or ethnic group or who were over 35 had lower pass rates and were therefore less likely to achieve promotion.
The claimants brought indirect race and age discrimination proceedings against the Home Office. The employment tribunal (ET) decided that the claimants had to show that the reason for the disparate impact of the testing process was something peculiar to the relevant protected characteristics of race and/or age, which was upheld by the Court of Appeal. The claimants appealed to the Supreme Court.
In Naeem, the employee was an imam working as a prison chaplain who had entered the Prison Service pay scale at the lowest point. Until 2002, the Prison Service only employed Christian chaplains; other chaplains were engaged on a sessional basis. Given that the pay system placed emphasis on length of service, Christian chaplains were more likely than Muslim chaplains to be towards the top of the pay scale.
Mr Naeem brought an indirect religious discrimination claim, arguing that he had been disadvantaged as a Muslim chaplain by the application of the length-of-service criterion, which meant that the average basic pay of Muslim chaplains was lower than that of Christian chaplains. He complained that a pay scale that was based on length of service indirectly discriminated against Muslims. He also claimed indirect race discrimination, on the basis that more white than Asian chaplains were towards the top of the scale. The Court of Appeal held that there was no indirect discrimination because the reason for the difference in average pay (ie length of service) was nothing to do with religion. Mr Naeem appealed to the Supreme Court.
Supreme Court decision
The Supreme Court unanimously allowed both appeals, overturning the Court of Appeal in each case. It held that there is no requirement for a claimant to prove the reason why a PCP puts or would put an affected group sharing a protected characteristic at a particular disadvantage. What is necessary is a causal connection between the PCP and the disadvantage suffered, both by the group and the individual. The reason why a PCP puts a group to a disadvantage does not have to relate to the protected characteristic.
In the case of Essop, the claims were remitted to the ET for determination. However, in the case of Naeem, the claim failed. While it was acknowledged that Muslim chaplains were put at a particular disadvantage compared with Christians, it was not open to the Supreme Court to overturn the ET's finding that the PCP was objectively justified.
The Supreme Court’s judgment set out a number of useful reminders about the test for indirect discrimination:
- There has never been any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others
- Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead, it requires a causal link between the PCP and the disadvantage suffered, both by the group and the individual
- There are many and varying reasons why one group may find it harder to comply with a PCP than others
- There is no requirement that a PCP must put every member of the group with a particular protected characteristic at a disadvantage
- It is commonplace for the disparate impact, or particular disadvantage, to be established using statistical evidence
- It is always open to an employer to show that a PCP is objectively justified. In other words, that it is a proportionate means of achieving a legitimate aim, and there is no stigma or shame in doing so.
Comment
As a result of the Supreme Court's judgment, it will be easier for claimants to establish indirect discrimination. For example, an employee will only have to show that a policy or practice adopted by their employer disadvantages a protected group in which they are included. It is also apparent that there is no requirement for the claimant to prove the reason why there is a group disadvantage and that the reason need not be something peculiar to the protected characteristic of the group.
It is therefore important for employers to check that their policies and practices are lawful and do not indirectly discriminate against employees. Examples of policies that can potentially have an indirectly discriminatory effect include recruitment requirements, working hours, dress codes and sickness absence policies, which could indirectly discriminate against employees with a particular protected characteristic.
Employers wondering how this judgment affects them should be aware that it relates to what a claimant has to prove in order for their claim to succeed. It does not alter the fact that employers can still justify indirect discrimination by showing that it was a proportionate means of achieving a legitimate aim.
