Employment E-Bulletin Article
In the joined cases of Essop v Home Office (UK Border Agency) and Naeem v The Secretary of State for Justice, the Supreme Court overruled the Court of Appeal in their assessment of the scope of indirect discrimination and held that a claimant does not need to prove the reason why the relevant provision, criterion or practice (PCP) places people who share their protected characteristic at a disadvantage (the "context factor"). It also said that the reason does not have to relate to the protected characteristic.
The key question for the UK's highest Court to decide in both Essop and Naeem was whether or not the claimant had to show some reason why they and those sharing their protected characteristic had suffered the disadvantage. The Supreme Court's answer to this question was no. It held that that the definition of indirect discrimination does not contain any express requirement for an explanation of the reason why a PCP puts one group at a disadvantage compared to others - it is enough that it does as a matter of fact. However, there does need to be a causal link between the PCP and the particular disadvantage suffered.
In Essop, the Home Office had a practice of requiring all staff to pass a generic ‘core skills’ assessment to become eligible for promotion however statistics appeared to indicate that BME and older candidates were likely to fail therefore a group of employees who failed the assessment brought claims for indirect discrimination. The Supreme Court held that the claimants just needed to show that the core skills test presented a higher risk that BME and older candidates as a group would fail – it did not matter that some of the candidates had in fact passed the test. The fact that the claimant had failed the test showed they had suffered a disadvantage.
In Naeem, the claimant was a Muslim prison chaplain and alleged that the practice of linking pay to length of service meant that Christian chaplains received higher because the prison service only began employing Muslin chaplains in 2002. The prison service argued that the reason for the disadvantage complained of simply had nothing to do with his race or religion. The Supreme Court held that the reason for the disadvantage was clear – the pay scale put Muslim chaplains at a disadvantage because they had shorter lengths of service than Christian chaplains however, the Supreme Court agreed with the earlier decision of the Employment Tribunal that the practice was objectively justified as a means of rewarding experience and skill.
In essence, what the Supreme Court are saying is simply that employers should not dismiss complaints raised which assert indirect discrimination, just because they cannot see any link between the practice complained of and the protected characteristic relied upon. In clarifying that a claimant does not need to demonstrate the ‘reason why’ they have suffered disadvantage, the Supreme Court has effectively stripped the test back and restored the previous position which is essentially that if an employer wishes to utilise a PCP which particularly disadvantages a group in society, they may still do so if they can prove a legitimate reason and that any disparate impact was proportionate to that aim.