Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27 (conjoined cases)

The Supreme Court has revised the legal test for indirect discrimination, holding that a claimant does not need to establish the reason that the treatment in question discriminated against them. The decisions reversed those of the Court of Appeal in two cases, which had stated that a claimant must be able to provide an explanation for their disadvantage in such claims.

Mr Essop, the lead appellant in his case, had been required to pass a Core Skills Assessment as a pre-requisite to promotion. A Home Office report revealed that black, minority ethnic and older candidates had lower pass rates than white candidates in this test, but the reasons for the differing pass rates were unclear.

Mr Naeem is an imam, who had worked as a prison chaplain since 2001. Before 2002, Muslim chaplains were not engaged on a salaried basis due to lack of demand. The Prison Service pay scheme was related to length of service, which meant all Muslim chaplains received less pay than their Christian counterparts, as they had shorter service.

The Supreme Court considered:

(i) Does the Claimant have to prove the reason for the group disadvantage; and (ii) Does the reason for the disadvantage have to be something which is particular to the group's protected characteristic?

The Court held unanimously that the answer was no to both questions. The crucial element to establish in such matters is causality between the protected characteristic and the disadvantage suffered, both by the individual themselves and the group as a whole.

The judgment delivers a significant simplification on a previously more complex law: in the above cases, each court overruled the decision in the previous stage of the proceedings, demonstrating the ambiguity surrounding indirect discrimination. This ruling returns the law to its previous position, and provides employers with much-needed clarity on the elements which need to be established by an employee in order for them to succeed in a claim of indirect discrimination.