The Supreme Court has overturned two decisions of the Court of Appeal, Essop -v- Home Office and Naeem -v- Secretary of State for Justice. In doing so it has clarified the law on indirect discrimination and has restored the orthodox position as it was previously understood by the majority of practitioners.
Essop concerned a test administered by the Home Office, which civil servants were required to pass before they could be promoted. Statistical evidence showed that candidates who were from a black, minority or ethnic group or who were older, were more likely to fail the exam and to therefore be ineligible for promotion. The Home Office argued that the Claimants needed to prove the reason why this was the case, and this was the question before the Court of Appeal.
Naeem concerned a pay scale for prison chaplains which was related to length of service; Muslim chaplains had only routinely been employed by the prison service since 2002, and consequently they had been employed for a shorter time than the Christian chaplains and received (on average) lower pay as a result. The Court of Appeal found that in order to determine whether the provision, criterion or practice (“PCP”) put Muslim chaplains at a disadvantage, it was necessary to establish the underlying reason for the different average lengths of service; the ‘reason why’ in this case was not discriminatory as Muslim chaplains simply had not been required prior to 2002 and this was not a discriminatory reason.
The Supreme Court overturned the Court of Appeal on these issues in both cases, holding that there is no need to show the reason why a PCP causes the group a disadvantage. Thus, in Essop it was enough for the Claimants to show that there was a group disadvantage. The fact that no one could show precisely what it was about the test that caused this disadvantage did not matter. The case was remitted to the Employment Tribunal on this basis. Similarly, applying this to Naeem, the fact that the motive behind the PCP was non-discriminatory was irrelevant; the PCP did result in a disadvantage to the Muslim chaplains (i.e. lower pay). However, in this case the Supreme Court pointed to the Tribunal’s initial decision, which found that the PCP had been objectively justified. The Supreme Court held that in the absence of an error of law it was not open to the higher courts to interfere with this finding; consequently the appeal was dismissed on this ground.
Lady Hale set out a useful list of ‘salient features’ to consider when analysing indirect discrimination, which helps to simplify what had become an increasingly complex area:
1. Indirect discrimination does not require anyone to explain why a particular PCP puts one group at a disadvantage.
2. Direct discrimination requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not; it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. This is because indirect discrimination is meant to deal with ‘hidden barriers which are not easy to anticipate or spot’ rather than cases where treatment arises because of an individual possessing a particular characteristic.
3. The reasons why one group may find it harder to comply with the PCP are many and various and can be referred to as context factors (e.g. the fact that women are generally shorter than men and consequently may find it harder to comply with a minimum height requirement). These factors are the reason for the disadvantage; it is the PCP and the context factors in combination which are causative of the disadvantage.
4. There is no requirement that the PCP has to put every member of the group at a disadvantage.
5. The particular disadvantage can be established on the basis of statistical evidence.
6. It is always open to the respondent to show that the PCP is justified – and there should be no shame or stigma in doing so. Lady Hale identified “reluctance to reach this point” in some of the case law, and highlighted that this should not be the case.
On balance this decision provides helpful clarity and restores the orthodox position.