25th April 2017
Order! Order! Supreme Court delivers key ruling on indirect discrimination issue
The UK Supreme Court has delivered its judgment in two of the most important discrimination cases of the year.
Indirect discrimination under s.19 of the Equality Act 2010 (“the EQA”) covers discrimination which arises by the application of an apparently neutral practice that causes a disadvantage to a particular group with the same protected characteristic. This is contrasted to the easier to grasp concept of direct discrimination (s.13 EQA) where malicious or prejudicial acts directed at a particular group are obviously discriminatory (e.g. a shop owner who refuses entry to gay or black people).
In Essop and ors v Home Office and Naeem v Secretary of State for Justice, the Supreme Court has overturned an earlier Court of Appeal ruling which required claimants to not only establish a particular group disadvantage caused by the policy, practice or criterion (“PCP”) in question, but also the burden of explaining why the disadvantage suffered was because of their protected characteristic.
In Essop, BME employees aged 35+ claimed that they were disadvantaged by a skills assessment test. Statistical evidence established that older BME candidates were more likely to fail the test than non-BME and younger candidates. These stats were, on the face of it, capable of showing that the PCP (the test) caused a particular disadvantage to BME candidates. However, the Court of Appeal had held that a claimant would also need to demonstrate why they had suffered the particular disadvantage.
In Naeem, a Muslim prison chaplain tried to challenge a length of service criteria included in the Prison Service’s pay structure. Essentially, longer service made for higher pay. Prior to 2002, the Prison Service had no demand for Muslim chaplains, and as such Muslim chaplains could not gain as long service as Christian chaplains. The Court of Appeal had found that, as there was no underlying discriminatory reason for the shorter length of service of Muslim chaplains, there was no prima facie indirect discrimination.
The Supreme Court has acted to provide much needed clarity on the extent of indirect discrimination. Lady Hale, who wrote the unanimously agreed judgment, confirmed the following salient features of the definition of indirect discrimination: That the law does not require for an explanation as to why a particular PCP puts one group at a disadvantage in comparison with others. For indirect discrimination, it is enough that it does.
Direct discrimination and indirect discrimination are to be contrasted. Direct discrimination requires a causal link between less favourable treatment and a protected characteristic. Indirect discrimination does not – instead, it requires a causal link between the PCP and the particular disadvantage suffered by the group and individual. Direct discrimination demands equality of treatment whereas indirect discrimination assumes there is an equality of treatment as a PCP applies too all, although it disadvantages those with a shared protected characteristic.
The concept of “context factors” has been introduced. That is to say that the reason one group may find it harder to comply with a PCP than others is wide-ranging. Mr Sean Jones QC for Naeem articulated the concept by way of a minimum height requirement. That criterion is not inherently discriminatory – it focuses on height rather than sex. Mr Jones QC states that “If men and women are, on average, the same height, the apparently neutral criterion will be neutral in application. But men and women are not the same height on average. Women are on average shorter. Therefore, the criterion will exclude more women than men. In order for the discriminatory impact of the criterion to be apparent one needs context. The lower average height of women is what we call a “context factor”. Indirect discrimination occurs when the employer’s criterion combines with one or more context factors to produce a disparity in outcome between people with a particular protected characteristic and those that do not have it. Put pseudo-mathematically one might say:
PCP + Context Factor = indirect discrimination.”
There is no requirement that the PCP in question puts every member of a group sharing the particular protected characteristic at a disadvantage.
It is routine for the particular disadvantage caused by a PCP to be established on the basis of statistical evidence.
The Supreme Court judgment preserves indirect discrimination as a viable claim in UK jurisprudence. If the Supreme Court had not overturned the Court of Appeal’s findings, it is highly likely that prospective claims for indirect discrimination would be prohibitive for the vast majority. The judgment also keeps the UK in line with EU equality directives.
Employers concerned about the Supreme Court’s stance will do well to consider Lady Hale’s sentiments at paragraph 29 of her judgment:
“A final salient feature is that it is always open to the respondent to show that his PCP is justified - in other words, that there is a good reason for the particular height requirement, or the particular chess grade, or the particular CSA test. Some reluctance to reach this point can be detected in the cases, yet there should not be. There is no finding of unlawful discrimination until all four elements of the definition are met. The requirement to justify a PCP should not be seen as placing an unreasonable burden upon respondents. Nor should it be seen as casting some sort of shadow or stigma upon them. There is no shame in it. There may well be very good reasons for the PCP in question - fitness levels in fire-fighters or policemen spring to mind. But, as Langstaff J pointed out in the EAT in Essop, a wise employer will monitor how his policies and practices impact upon various groups and, if he finds that they do have a disparate impact, will try and see what can be modified to remove that impact while achieving the desired result.”
To find out more information about indirect discrimination law, click here.
If you would like any further information in relation to indirect discrimination or any other HR queries then please contact Employment Solicitor Daniel Stander on 07921 473 664 or at firstname.lastname@example.org