Supreme Court clarifies test for indirect discrimination
Thursday 20th April 2017
In Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice, the Supreme Court considered whether, in relation to an indirect discrimination claim, claimants must show the reason a “provision, criterion or practice” puts them at a particular disadvantage, not just that it did so.
Mr Essop was required to pass a Core Skills Assessment as a pre-requisite for certain promotions and he alleged that this PCP was indirectly discriminatory. A report commissioned by the Home Office showed that Black and Minority Ethnic candidates and older candidates had lower pass rates than white and younger candidates. Mr Essop alleged indirect race and age discrimination, with his failure to pass the exam being the disadvantage suffered. The CA held that Mr Essop had to show why the requirement to pass the CSA put the group at a disadvantage and that he had failed the CSA for that reason.
Mr Naeem worked for the Prison Service which operated a pay structure linking basic pay with length of service. Mr Naeem alleged the pay scheme was indirectly discriminatory on the grounds of race and religion. The length of service criterion put Muslim Chaplains at a particular disadvantage, as they had on average shorter lengths of service and therefore typically received less basic pay than Christian Chaplains. The CA held that the disadvantage resulted from a lack of demand for salaried Muslim Chaplains prior to 2002, which was not related to the protected characteristics of race and/or religion.
The SC disagreed with the CA’s approach to the test in both cases, holding that the essential element of indirect discrimination is the causal connection, namely that the PCP caused a particular disadvantage suffered by the group and the individual. This may be easier to demonstrate if the reason for the group disadvantage is known, but the EqA 2010 does not require claimants to show why the PCP puts one group at a disadvantage when compared with others; it is sufficient that it does.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.