For a claimant to prove indirect discrimination, he or she has to show that there is a provision, criterion or practice which puts him or her (and others who share the protected characteristic) at a disadvantage against those who do not have that protected characteristic. Common scenarios in the modern workplace include the barriers to career progression faced by working mothers who cannot meet an expectation of long working hours, or who suffer from a lack of flexible working arrangements. In the following combined cases, the Supreme Court reaffirmed that claimants do not need to prove a causal link between a protected characteristic and the treatment suffered.
Essop and ors v. Home Office (UK Border Agency)
In Essop and ors v. Home Office, there were 49 claimants employed by the Home Office. The employees were required to pass a generic Core Skills Assessment (the Assessment) in order to gain promotion to a higher Civil Service grade. The 49 claimants all failed to pass the Assessment and were not promoted. A report revealed that the older candidates had lower pass rates than the younger candidates, and the black and minority ethnic candidates had lower pass rates than the white candidates. These results were not explicable. The claimants took their case to the Court of Appeal (CA) but failed in their appeal as they were unable to show that the reason they failed the Assessment was because of their protected characteristic, despite the fact that the results of the report revealed a correlation between age and race and success rates.
The Supreme Court unanimously held that the employees were not required to explain the reason why a protected characteristic caused an individual, or group, disadvantage. The Supreme Court concluded that it was sufficient for the claimants to simply demonstrate that they had suffered a disadvantage at all, and that the disadvantage suffered by the group and individuals was the same.
Despite this, it remains open for a respondent to show that there is no causal link between the provision, criterion or practice and the disadvantage suffered on an individual or group level. For example, a respondent would be free to show that an individual failed the Assessment because he or she did not complete the exam, rather than as a result of a provision, criterion or practice.
In this case, before 2002, Muslim prison chaplains were engaged on a sessional basis, until they moved to a salaried basis in 2004. The Prison Service pay for chaplains (of any religious denomination) in relation to their length of service as salaried employees. As Muslim prison chaplains only became salaried employees in 2004 and had a lower length of recognised service as a result, Christian prison chaplains were paid more than them on average. Therefore, in this case, the pay scheme operated by the Prison Service was the provision, criterion or practice that was causing the disadvantage.
The CA concluded that indirect discrimination was not present in this case as the reason for the disadvantage (the length of service) was cursorily unconnected to the protected characteristic.
However, the Supreme Court rejected this and held that, on the simplest analysis, the very fact that Muslim chaplains were paid less than Christian chaplains (on average) meant that there was a link between religion or race and lower pay. The Supreme Court reasoned that this amounted to indirect discrimination requiring justification. In addition to its conclusions in Essop, the Supreme Court held that is not necessary for the reason for the disadvantage to be related to the protected characteristic. In the same way that women undertaking greater responsibility for childcare is not intrinsic to being a woman, the perceived lack of need for Muslim prison chaplains before 2002 was also a result of social conditions.
As a result, the Supreme Court considered that the main issue to be determined was whether the pool of employees to be analysed should be all chaplains, or only chaplains whose employment started after 2002. It concluded that the pool should include everyone affected by the provision, criterion or practice. A failure to look at the whole pool would go against the very nature of indirect discrimination claims as it would disregard seemingly neutral practices that create barriers for certain groups. In any event, the claimants were unsuccessful as the Prison Service was able to demonstrate that its pay structure pursued a legitimate aim of rewarding service through an intermediate pay system.
Despite the clarification offered by these decisions, it is important that employers remember that they still have the ability to justify indirect discrimination by showing that the provision, criterion or practice was a proportionate means of achieving a legitimate aim. Only where an employer fails to show this justification will a claimant succeed with its claim. Although it remains difficult for claimants to succeed in indirect discrimination cases, it is still important that employers assess whether there are any less discriminatory means by which they can achieve the same aim.