05 April 2017
Supreme Court clarifies what is needed to establish indirect discrimination.
Indirect discrimination occurs where a seemingly neutral provision, criterion or practice (PCP) affects a greater proportion of those with one protected characteristic. For example, requiring all promoted post holders to be 6 feet tall or more is indirectly discriminatory against women (given women are less likely to be able to comply with the PCP). The wording of the legislation is, however, important and what precisely requires to be established to find indirect discrimination was recently considered by the Supreme Court. In Essop and ors v Home Office and Naeem v Secretary of State for Justice the Supreme Court in 2 cases considered the law of indirect discrimination.
Promotion test statistically affects one group more than another – prima facia unlawful?
In Essop the issue under consideration was the impact of the Core Skills Assessment (CSA), the Home Office promotion test. An equality impact assessment had found that black and minority ethnic candidates and those aged 35 and over had a proportionately lower pass rate than white and younger candidates. Home Office employees who failed the test claimed indirect race and/or age discrimination. The legislation states that unlawful indirect discrimination exists where A applies to B a PCP if:
a) A applies or would apply the PCP to persons with whom B does not share the characteristic;
b) the PCP puts or would put persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it;
c) the PCP puts or would put B at that disadvantage; and
d) A cannot show that the PCP is objectively justified.
The Employment Tribunal found that to establish the particular disadvantage each Claimant had to establish the reason why they had failed the test in order for the Tribunal to determine whether they were put at the same disadvantage as the group. Without that evidence the Tribunal found that there could be no indirect discrimination, even if the statistics suggested those with the characteristic were generally at a disadvantage. That was simlar to direct discrimination claims where the reason why the employer acted was the key consideration.
The Supreme Court, however, disagreed and found that the disadvantage suffered by Claimant must “correspond with the disadvantage suffered by the group”. Here, the disadvantage was that black and ethnic minority candidates and older candidates failed the test disproportionately. It had been shown that the Claimants themselves suffered this disadvantage. If the employer could show that there was no causal link between the PCP and the individual disadvantage, for example, because the Claimant failed the test due to a non-discriminatory reason (eg late attendance etc), the claim would fail. The claims were therefore remitted to the Tribunal to consider in light of the new approach to be taken to such claims.
Passage of time explains pay differential – prima facie unlawful?
In Naeem, the Claimant was an imam who worked for the Prison Service as a full-time chaplain. He had commenced employment in 2004. As at 1 April 2011 the average basic pay for Muslim chaplains was £31,847, whereas for Christian chaplains it was £33,811. This was ascribed to the average shorter length of service of Muslim chaplains as pay progression was determined by length of service. The differential was created because the Prison Service only began to employ permanent Muslim chaplains from 2002. The question for the Tribunal was whether the differential amounted to unlawful indirect discrimination. The Tribunal held that it did but that the treatment was objectively justified.
The Supreme Court held that the reason why the pay scale put Muslim chaplains at a disadvantage was their shorter service compared to Christian chaplains. In the Supreme Court’s view this was enough to establish that the PCP put Muslim chaplains at a particular disadvantage. No further evidence or proof was needed of indirect discrimination. As the Tribunal had found that the treatment was objectively justified, the claim ultimately failed. Nevertheless the Court’s analysis of the approach as to whether or not there was prima facia discrimination (which required to be justified by the employer) fundamentlly differed from the orthodox approach.
The law going forward
Over the years there have been a number of cases considering the constituent elements of indirect discrimination. It can sometimes be difficult conceptually to understand and establish this claim. The Supreme Court pointed out there has never been an express requirement for an explanation of the “reasons why” the PCP puts one group with a particular protected characteristic at a disadvantage compared to others. It is enough that it does as a matter of fact (whether shown by statsitical evidence or otherwise). It is also now clear that indirect discrimination, unlike direct discrimination, does not require a causal link between the protected characteristic and the treatment. Nevertheless there does need to be a causal link between the PCP and the particular disadvantage suffered. The reason for the disadvantage may not in itself be unlawful, or even within the employer’s control, but the PCP and the reason for the disadvantage must be causes of the disadvantage. In addition, the PCP need not put every member of the group sharing the protected characteristic at a disadvantage. Thus in the Essop case it was irrelevant that some candidates with the relevant protected characteristics could pass the test: the group was at a disadvantage because the proportion who could pass was smaller than the proportion of white or younger candidates. The other key difference in indirect discrimination cases is the ability an employer has to show that the treatment is objectively justified.
This is an important judgment that clarifies the law in relation to unlawful indirect discrimination. It further emphasises the need for employers to carry out impact assessments in relation to PCPs and ensure that there is clear evidence of objective justification. What is the legitimate aim that is being followed and are the means used to achieve it proportionate? That is not always an easy task. As ever speak to your friendly employment lawyers at BTO to help audit your current PCPs and manage the risks in this area.
Link to judgment: https://www.supremecourt.uk/cases/docs/uksc-2015-0161-judgment.pdf
To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.