Indirect Discrimination in the UK – What must a Claimant Prove?

The Supreme Court in the UK has given its decision in the conjoined cases of Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice, concerning indirect discrimination.  It has held that it is not necessary for a claimant in an indirect discrimination claim to prove the reason why they were put at a particular disadvantage.

Indirect discrimination arises where an employer applies an apparently neutral rule (known as a provision, criteria or practice (PCP)), which puts an employee (and others who share the protected characteristic) at a particular disadvantage compared to others who do not share that characteristic.

The first case involved a requirement for staff at the UK Home Office to pass a core skill assessment test before they could be promoted to a higher grade.  The claimants, who were all from black and ethnic minority backgrounds and aged over 35, failed the relevant test.  Statistical evidence showed that individuals within that group were less likely to pass the test, although the reason for the lower pass rates by this group were not clear.  At the employment tribunal the employment judge held that it was not sufficient to show that the employees had suffered a disadvantage – to prove personal disadvantage they also needed to show the reason why they had failed the test.  The Court of Appeal agreed, holding that the claimant had to show the reason why the requirement put the group at a disadvantage and that they had individually failed the test for the same reason.

The second case involved an incremental pay scale in the Prison Service, which rewarded length of service. Since Christian chaplains had been salaried employees for longer than Muslim chaplains, their average pay was higher than Muslim chaplains. The claimant brought proceedings which claimed the incremental pay scheme indirectly discriminated against Muslim chaplains. The Court of Appeal rejected the claim on the basis that it was not enough to show that the length of service criterion had a disparate impact on the Muslim chaplains, but it was also necessary to show that the reason for the disparate impact was something peculiar to the protected characteristic.

The Supreme Court, in considering both these cases, held that the concept of indirect discrimination had never required an explanation of the reasons why a particular PCP puts one group at a disadvantage. However, what there must be is a causal link between the PCP and the disadvantage, but not necessarily between the characteristic and the treatment.  There was concern expressed that if the claimant did not have to show the reason why they were put at a disadvantage then this would result in “undeserving” claimants who had failed the test for no reason related to the disparate impact, (for example, because they had turned up late or had failed to complete the test) bringing claims.  However, the court clarified that in those circumstances the respondent would be able to argue that the particular claimant was not put at a disadvantage by the requirement, as there was no causal link between the PCP and the disadvantage.  In addition, there would be a “material difference” between the circumstances relating to each case.

There is also no requirement that the PCP puts every member of the group sharing the particular protected characteristic at a disadvantage. For example, some women may be taller and stronger than some men and would therefore be able to meet a height or strength requirement.  However, as a group they may be more disproportionately disadvantaged.

It is also always open for the respondent to show that the indirect discrimination can be objectively justified as a proportionate means of achieving a legitimate aim. The Essop case was therefore remitted to the Employment Tribunal to determine the claims.  In the Naeem case the Employment Tribunal had already found that the PCP complained of was objectively justified and therefore, although the court held that there was indirect discrimination, it was bound by the tribunals factual findings.

The main issue from these cases is therefore the effect on what the claimant has to prove. They effectively remove the additional hurdle which required an employee to explain the reason for the PCP causing the disadvantage.