Indirect discrimination: no need to show the reason for the particular disadvantage

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The Supreme Court has recently given an important judgement on certain key principles of the law on indirect discrimination in the conjoined cases of Essop and ors v Home Office and Naeem v Secretary of State for Justice. The Supreme Court held that in an indirect discrimination claim a claimant does not need to show why he and the group to which he belonged were disadvantaged by the employer’s practice; it is enough to show that they were in fact disadvantaged and that there was a causal link between the disadvantage and the employer’s practice. 

Background: Indirect discrimination
Indirect discrimination covers apparently neutral provisions, criterion or practices (“PCP”) which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic (for example, age, disability, race, sex) when compared with others who do not. Where such a PCP disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be objectively justified.

Facts
We will focus in this article on the case of Essop. This case concerned a test which the Home Office required all employees to pass in order to be eligible for promotion. Research showed that Black and Minority Ethnic (BME) candidates and older candidates had lower pass rates than white and younger candidates. A claim for indirect race and age discrimination was brought by a number of employees who had failed the test.

Decision
After some lengthy litigation in the Tribunal, Employment Appeal Tribunal and the Court of Appeal, the Supreme Court (“SC”) has now given its decision in this case. The principal issue before the SC was whether a claimant must show the reason for the disadvantage suffered by the group and by the claimant as an individual. 

The SC ruled in favour of the claimant, holding the following key points:

  1. There is no need to show the reason why the PCP creates the disadvantage. 
  2. It is, however, essential that there is a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual. 
  3. Not every member of the group had to suffer the disadvantage (i.e. fail the test). In this case, the group was at a disadvantage as the proportion of BME or older candidates who passed the test was smaller than the proportion of white or younger candidates who passed. It was not fatal to the claim that some BME or younger candidates passed the test.
  4. The disadvantage suffered by the individual must correspond with the disadvantage suffered by the group.
  5. Employers could seek to defend claims of indirect discrimination by showing that the PCP was not the genuine reason for the disadvantage. In this case, for example, by showing that the real reason for the disadvantage was a failure to prepare or show up for the test.
  6. It is open to the employer to show the PCP is justified.

Comment
This decision provides some useful guidance on how the Courts and Tribunals should approach indirect discrimination. However, the difference between the ‘reason why’ the disadvantage is suffered and the causative link between the PCP and the disadvantage is complicated and likely to lead to further litigation. In any event, if employees do not have to show the reason why they were disadvantaged, this puts more emphasis on the employer’s objective justification arguments.

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Frances Rollin

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