The Supreme Court has recently handed down its decision in the joined cases of Essop v Home Office and Naeem v Secretary of State for Justice. The Supreme Court overruled decisions of the Court of Appeal in both cases, holding that there is no need for a claimant to establish the reason for a particular disadvantage suffered by a group sharing a protected characteristic in an indirect discrimination claim. It is enough first to show there is a disadvantage.
The case of Essop v Home Office concerned a number of claimants from black and ethnic minority (BME) backgrounds who were over 35 years old. The Home Office imposed a core skills assessment which had to be passed before any positions above that of higher executive officer could be attained. The claimants did not pass the assessment and were not promoted as a consequence.
The claimants brought claims in the Employment Tribunal of indirect discrimination on the ground of race. They argued that the core skills assessment was a provision, criterion or practice (PCP) which was applied to everyone but which put older people from a BME background at a disadvantage. They put forward statistical evidence that BME candidates over the age of 35 were less likely to pass the test than those who were younger and from a non-BME background. Although the tribunal accepted that the statistical evidence showed older BME candidates were less likely to pass, the claims were rejected on the basis that the claimants has failed to show the reason why they had suffered the disadvantage, in other words why they had failed the assessment.
The EAT disagreed, holding that it was not necessary in an indirect discrimination claim for claimants to show why they had suffered a particular disadvantage. On further appeal to the Court of Appeal, this finding was overturned on the basis that it was necessary for the claimants to show why the assessment put them at a particular disadvantage and that they had failed the assessment for that reason.
In the case of Naeem v Secretary of State for Justice, Mr Naeem worked as an imam in the Prison Service. Until 2002, the Prison Service employed only Christian chaplains on a permanent basis. Chaplains of other religions were employed temporarily from time to time. Chaplains' salaries increased with length of service and through performance appraisals. Mr Naeem complained to an employment tribunal of indirect discrimination on the grounds of both religion and race. He brought statistical evidence to show that Christian chaplains were more likely to be at the top of the pay scale than Muslim chaplains.
The employment tribunal found that the claimant had established indirect discrimination but that the employer's PCP of rewarding length of service through pay was justified as a proportionate means of achieving a legitimate aim.
On appeal, the EAT disagreed, stating that the tribunal was wrong to include Christian chaplains who had been employed before 2002 in the comparison pool. It found that the circumstances of these Christian chaplains were materially different to those of employees who were engaged after 2002. It held that chaplains of any religion who were appointed at the same time as the claimant would all face the same disadvantage and so the pay system could not be said to be indirectly discriminatory against the claimant.
The Court of Appeal agreed. It found that Muslim chaplains were not put at a particular disadvantage and also stated that the claimant had to show that the reason behind the disadvantage was connected to the protected characteristic in question.
The Supreme Court, dealing with both appeals in conjoined cases, overturned both Court of Appeal decisions. It held that there is no requirement for a claimant to show the reason why a PCP puts a disadvantaged group sharing a protected characteristic at a particular disadvantage and that there is no need for there to be a connection between the reason why the PCP disadvantages the group and the protected characteristic.
Lady Hale's judgment brings clarity to the requirements for an indirect discrimination claim to be made out. She stated that there has never been any express requirement for an explanation of the reasons why a PCP puts a group at a disadvantage when compared with others. She noted that it has always been enough to show simply that there is a disadvantage. She observed that the purpose of indirect discrimination legislation is to achieve a level playing field for employees with and without protected characteristics. She notes that there may be various reasons why a group finds it harder to comply with a particular PCP than other groups, but that is not necessary to pin down the reason behind the disadvantage suffered. She also noted that the legislation allows an employer to justify the use of a discriminatory PCP, and that there is no shame in such justification as there may be very good reasons for the PCP in question.
The Supreme Court judgment also clarifies that all workers affected by a PCP should be placed in the pool for comparison. In the case of Naeem, the correct pool was all employed prison chaplains, including Christian chaplains employed before 2002. The Supreme Court found no error of law in the tribunal's finding that rewarding length of service through pay was a proportionate means of achieving a legitimate aim. As it was not able to disturb the factual finding of the tribunal on this point, the claim was ultimately unsuccessful on the facts.
This judgment makes clear that the purpose behind indirect discrimination legislation is to protect people with a protected characteristic from suffering disadvantage where an apparently neutral PCP is applied. While the reason for the disadvantage will often be obvious, it need not be and there is no need to establish the reason for the disadvantage before the claim can be made out.