Supreme court delivers judgment in important indirect discrimination cases

Yesterday the Supreme Court delivered its judgment in the combined cases of Essop v Home Office and Naeem v Secretary of State for Justice. The judgment deals with important issues in relation to the legal test for indirect discrimination and whether a claimant needs to establish the reason why the treatment discriminated against them. The Essop judgment is significant because it reverses the previous decision by the Court of Appeal which said that indirect discrimination requires an explanation by the claimant.

Background
As many will be aware indirect discrimination involves the application of an apparently neutral rule and the disparate impact this has on a person because of their sex or race or other protected characteristic. An employee is required to prove that the employer has applied the provision, criterion or practice (PCP) which puts them (and others who share the protected characteristic) at a disadvantage in comparison with others who do not share that protected characteristic. Unlike direct discrimination, indirect discrimination can be justified by an employer.

Essop
Mr Essop was an immigration officer. To be promoted, he needed to pass a generic Core Skills Assessment, which was the PCP in this case.

A report had revealed that older candidates had lower pass rates than younger candidates and black and minority ethnic (‘BME’) candidates had lower pass rates than white candidates.

The reasons for the different pass rates were not clear.

The Supreme Court found that there is no requirement for an explanation of the reasons why a PCP causes the group or the individual to suffer a disadvantage – it is sufficient that it causes a disadvantage. Lady Hale commented:

“Sometimes … the reason will be obvious: women are on average shorter than men, so a tall minimum height requirement will disadvantage women whereas a short maximum will disadvantage men.
But sometimes it will not be obvious: there is no generally accepted explanation for why women have on average achieved lower grades as chess players than men, but a requirement to hold a high chess grade will put them at a disadvantage.”

In addition, the Supreme Court found that the disadvantage suffered by the group and the individual must be the same. The Supreme Court ruled:

“This will largely depend upon how one defines the particular disadvantage in question. If the disadvantage is that more BME or older candidates fail the test than do white or younger candidates, then failure is the disadvantage and [only] a claimant who fails has suffered that disadvantage.
If the disadvantage is that BME and older candidates are more likely to fail than white or younger candidates, then the likelihood of failure is the disadvantage and any BME or older candidate suffers that disadvantage.”

In this case, the Supreme Court found that the disadvantage is the increased likelihood of failing, even if many members of that group and the individual themselves did not in fact fail.

That said, it is open to a respondent to show that there was no causal link between the PCP and the disadvantage suffered by either the group or the individual – for example where the individual failed because he or she did not turn up to, or complete, the exam – and that there was therefore a “material difference” between the circumstances relating to the cases.

The case was remitted to the Employment Tribunal to consider whether the indirect discrimination could be objectively justified as a proportionate means of achieving a legitimate aim.

Naeem
Mr Naeem is a Muslim prison chaplain. Before 2002, Muslim chaplains were not engaged on a salaried basis, due to lack of demand. Mr Naeem changed from working on a ‘sessional’ basis to salaried in 2004.

In the Prison Service, pay for chaplains is related to length of service as a salaried employee. Therefore, since the average length of service for Christian chaplains was longer than that of Muslim chaplains their average pay was higher. The pay scheme was the PCP in this case.

In addition to the Supreme Court’s finding in Essop that it is not necessary to show the reason for the PCP causing the disadvantage (see above), the Supreme Court found that the reason for the disadvantage does not need to be related to the protected characteristic. The fact of women undertaking greater care responsibilities (which is related to the disadvantage suffered) is not intrinsic to being a woman, rather it is the result of “social conditions and customs”. Similarly, the perceived lack of need for Muslim chaplains before 2002 was the result of “social conditions”.

The main issue considered in Naeem was whether the pool of employees to be analysed should be all chaplains or only chaplains whose employment had started since 2002. The Supreme Court found that, simply, the pool should include everyone affected by the PCP (whether positively or negatively). Therefore, the non-Muslim chaplains whose employment had started before 2002 were included, in effect meaning the Muslim chaplains suffered disadvantage and had suffered indirect discrimination.

Conclusion
Employers wondering how this judgment affects them should be aware that this decision relates to what a claimant has to prove. 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.

Arguably the judgment reaffirms the understanding of indirect discrimination before the Essop ruling in the Court of Appeal, confirming that individuals do not need to explain the reason for a PCP causing disadvantage, and that the disadvantage can in fact be a greater likelihood of suffering a disadvantage. The test remains difficult for claimants in many cases because of the need to prove causation.