The Supreme Court has made joint rulings which significantly simplify indirect discrimination law and increase the chances of successful claims.
Direct discrimination is usually fairly obvious and most people have a ‘gut instinct’ for it when they see it (e.g. not hiring a candidate because she is female, or subjecting a worker to racial abuse). Indirect discrimination is not always so easy to identify; it occurs when a seemingly innocuous provision, criterion or practice (PCP) (e.g. a height or strength requirement) puts people with a particular protected characteristic at a particular disadvantage when compared to others. If it appears that indirect discrimination has occurred, the employer will have a defence if it can show that its PCP is objectively justified.
The Supreme Court has recently considered two important questions about indirect discrimination:
- Does the claimant have to prove the ‘reason why’ there is group disadvantage?
- Did the ‘reason why’ have to be something which was peculiar to the protected characteristic shared by the group?
The Supreme Court unanimously held that the answer to both questions was ‘no’, reversing two Court of Appeal decisions. In doing so, the Supreme Court has significantly simplified indirect discrimination law. The Supreme Court held that indirect discrimination has the following features:
- it is enough that the group disadvantage (often established via statistical evidence) exists – an explanation of the ‘reason why’ there is group disadvantage is not necessary
- the ‘reason why’ need not be unlawful, and it can be inside or outside the control of the employer
- there must be a causal link between the PCP and the particular disadvantage suffered
- both the PCP and the reason for the disadvantage must be ‘but for’ causes of the disadvantage
- the PCP need not put every member of the group sharing the protected characteristic at a disadvantage, provided the group as a whole suffer a disadvantage, and
- an employer may be able to objectively justify its PCP, by proving it is a proportionate way of achieving a legitimate aim.
In Essop & Ors -v- Home Office (UK Border Agency)  UKSC 27, a group of Home Office civil servants brought discrimination claims arising from the requirement that they pass a core skills assessment as a pre-requisite for promotion. Black and minority ethnic (BME) candidates, and older candidates, had lower pass rates for this core skills assessment than white and younger candidates. Nobody had been able to identify the ‘reason why’ BME candidates had a lower pass rate. The Home Office argued that, unless they could prove the ‘reason why’ there was group disadvantage their claims could not succeed. The Supreme Court disagreed and has sent the claim back to the tribunal.
In Naeem -v- Secretary of State for Justice  UKSC 27, a Muslim Imam working for the Prison Service argued that an incremental pay scheme, which granted pay progression based on length of service, was indirectly discriminatory. Initially only Christian chaplains were employed and this meant that all of the Muslim chaplains had shorter service and in turn received less pay. The Court of Appeal held that it was not enough to show disparate impact upon Muslim chaplains; the ‘reason why’ the group suffered the disadvantage had to be something which was peculiar to the protected characteristic they shared. The Supreme Court disagreed, but upheld the tribunal’s decision that the PCP was objectively justified.
What does this mean for employers?
There is little doubt that, in simplifying the law regarding indirect discrimination, the Supreme Court has, in turn, increased the chances of successful claims being brought. However, in practical terms, what the Supreme Court has done is reverse two erroneous Court of Appeal decisions and return the law to how things were previously.
Where an employer’s PCP results in a group disadvantage shared by those with a protected characteristic and the individual claimant also suffers from that disadvantage, then the claim will succeed unless the employer can objectively justify its PCP. It does not matter whether the claimant can prove the ‘reason why’ there is group disadvantage, and that reason need not be something peculiar to the protected characteristic of the group.
The decision is not limited to claims arising from qualifications, assessments or tests (like those at work in the Essop case), or to pay structures (like that in the Naeem case). Nor is it limited to existing staff because job applicants are also protected from indirect discrimination. Employers should be wary of any indications of group disadvantage faced by those sharing a particular protected characteristic and consider whether the PCP in question is objectively justified and how to minimise that disadvantage, even if they do not understand what the cause of that disadvantage is. For example, PCPs which may cause group disadvantage include recruitment requirements, dress codes, workplaces, working hours and rules governing access to enhanced employment benefits or perks.