Co-authored by Sarah Hayes, Trainee Solicitor and Claire Merritt, Associate.
In the conjoined cases of Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27, the Supreme Court recently gave a leading unanimous judgment that:
- There is no requirement for a claimant to show the reason why a provision, criterion or practice (PCP) causes individuals with their protected characteristic particular disadvantage.
- The reason why a PCP puts a group at a disadvantage does not have to be related to the protected characteristic in question.
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Essop and others v Home Office Mr Essop was the lead Claimant in a group of Home Office employees. They were required to pass a Core Skills Assessment (CSA) to become eligible for promotion and at different times, all Claimants had failed the CSA. A statistical report showed that the proportion of Black, Minority and Ethnic (BME) candidates over 35 who failed was significantly higher than the proportion of white or younger candidates failing. There was no explanation for this disparity. Mr Essop claimed that the CSA requirement constituted indirect discrimination because of age or race. Employment Tribunal (ET) The ET dismissed the claim, holding that s.19 of the Equality Act 2010 required Mr Essop to prove the reason for the lower pass rate. Employment Appeal Tribunal (EAT) The EAT overturned this ruling and held that it was enough for the Claimants to demonstrate that the group had been or would be put at the disadvantage of a greater risk of failure and that each Claimant had been put at this disadvantage in reality. Court of Appeal The Court of Appeal restored the ET’s decision, considering it conceptually impossible to prove group disadvantage without also explaining why the claimed disadvantage was said to arise. |
Naeem v Secretary of State for Justice Mr Naeem was a Muslim chaplain for the Prison Service. Before 2002, Muslim chaplains were engaged on a sessional basis only, as the Prison Service believed that there were not enough Muslim prisoners to justify permanent salaried chaplains. The Prison Service operated an incremental pay scale, where the amount of pay was related to the chaplain’s length of service. Mr Naeem argued that the pay scale was indirectly discriminatory against Muslim or Asian chaplains. Employment Tribunal (ET) The ET constructed a pool comprising all prison chaplains and held that the pay scheme was indirectly discriminatory in relation to race and religion but was objectively justified as a proportionate means of achieving a legitimate aim. Employment Appeal Tribunal (EAT) The EAT held that the pool should only include prison chaplains employed since 2002. It concluded that there was no disadvantage as the pay scale operated equally for Muslim and non-Muslim chaplains employed post-2002. Court of Appeal The Court of Appeal upheld the EAT decision through a different route. It held that it was necessary to show that the reason for that disparate impact was something peculiar to the protected characteristic in question. |
Supreme Court
The Supreme Court heard both cases together. It allowed the appeal in Essop but dismissed the appeal in Naeem. It concluded that although the incremental pay scale put Muslim chaplains at a disadvantage compared to Christian chaplains, the Prison Service were moving to a new pay scale. This was for the legitimate reason of rewarding length of service and experience and Mr Naeem’s disadvantage was no more than necessary in the transition period.
The Supreme Court held that for the purposes of an indirect discrimination claim:
- There is no requirement for a claimant to prove the reason why a PCP puts or would put an affected group sharing a protected characteristic at a particular disadvantage (the “context factor”). The essential element is a causal connection between the PCP and the disadvantage suffered, both by the group and the individual. This may be easier to prove if the reason for the group disadvantage is known, but that is a question of fact and not law. The context factor does not need to relate to the protected characteristic.
- A claimant must only show that the PCP caused a particular disadvantage to themselves and a group of others sharing their protected characteristic; it is not necessary to show the reason why.
Employment Law Implications
Employers
- 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.
Employees
- The absence of a requirement to establish why a PCP has or would put a group at a particular disadvantage ought to make it easier for claimants to establish a prima facie case of indirect discrimination. Demonstrating that a disadvantage has been caused by the PCP will be sufficient.
At Paris Smith we have extensive experience of dealing with employees and employers facing issues relating to indirect discrimination. If you have any questions relating to this topic, please do not hesitate to one of the Employment team.