Supreme Court clarifies rules on indirect discrimination: Essop & Naeem
Thu 01 Jun 2017
Indirect discrimination occurs when an organisation’s provision, criterion or practice (PCP) has the effect of disadvantaging people who share certain protected characteristics (such as sex, race, age, and so on). It may not be unlawful if an employer can show there is an ‘objective justification’ for it. The Court of Appeal (CA) in the cases of Essop and Naeem said that a claimant had to show the reason why the PCP put him at a particular disadvantage. The Supreme Court (SC) has overturned the CA.
Mr Essop was the lead claimant in a group of civil servants employed by the Home Office. They were required to pass a Core Skills Assessment (CSA) as a pre-requisite for promotion to higher civil service grades. A report in 2010 showed that Black and Minority Ethnic (BME) and older candidates had lower pass rates than white and younger candidates. The claimant alleged the requirement to pass the CSA was indirect discrimination on the grounds of race and age. The defendant argued that section 19(2)(a) Equality Act 2010 requires the claimant to prove the reason for the lower pass rate. The CA agreed, upholding the decision of the Employment Tribunal (ET).
Mr Naeem, the claimant, was an imam working as a chaplain in the Prison Service. The pay scale in the Prison Service was incremental with increases based on length of service. Prior to 2002, the Prison employed no Muslim chaplains due to insufficient demand. This meant that Christian chaplains, who had been employed, on average, for a longer period of time, were paid more than Muslim chaplains. Mr Naeem argued the incremental pay scheme was indirectly discriminatory towards Muslim and Asian chaplains. Neither the Employment Appeal Tribunal nor the CA thought the scheme was prima facie discriminatory.
By contrast, the SC found that prima facie indirect discrimination had been established in both cases. Lady Hale gave the sole judgment. She concluded that there was no justification for incorporating a “reason why” requirement into the law of indirect discrimination and indicated as follows:
(1) There has never been an express requirement for an explanation of the reasons why a PCP puts one group at a particular disadvantage compared to others.
(2) Indirect discrimination requires a causal link between the PCP and the particular disadvantage suffered but not a causal link between the characteristic and the treatment (unlike direct discrimination).
(3) The reason for the disadvantage does not have to be unlawful nor under the control of the employer but the PCP and the reason for the disadvantage must be ‘but for’ causes of the disadvantage.
(4) The PCP does not need to put every member of the group at a disadvantage. In Essop, it was irrelevant that some BME or older members could pass the CSA: the group was disadvantaged because there was a higher proportion of white or younger individuals who passed.
(5) It is commonplace for the disparate impact to be established based on statistical evidence.
It is always open to an employer to justify why a PCP disadvantages a particular group. In Naeem, the SC agreed with the ET that the pay scheme was objectively justified, taking account of the fact that the Prison Service was trying to move away from the long incremental pay scale to a much shorter one. The increments would depend to a limited extent on experience and a greater extent on assessed performance. In the circumstances, the disadvantage suffered by Mr Naeem was justified as the transition to a shorter pay scale had already been put in motion.