In Essop v Home Office and Naeem v Secretary of State for Justice, the Supreme Court has handed down two important decisions on the scope of indirect discrimination.
Mr Essop and others were required to pass a skills assessment to be promoted. Black and Minority Ethnic (‘BME’) and older candidates had lower pass rates than white and younger candidates. They argued that the requirement to pass that skills assessment was indirectly discriminatory.
Allowing Mr Essop’s appeal, the Supreme Court overturned the Court of Appeal’s decision that the claimants had to show the reason why the provision, criterion or practice (‘PCP’) referred to in sections 19(2)(b) and (c) Equality Act 2010 put them at a particular disadvantage. Reviewing the legislation on indirect discrimination, the Court held that there had never been a requirement to explain the reason why a PCP put a particular group at a disadvantage. It sufficed that it did. In contrast to direct discrimination, indirect discrimination did not expressly require a causal link between the less favourable treatment and the protected characteristic. Instead, it required a causal link between the PCP and the disadvantage. The fact that some BME or older candidates could pass the test was irrelevant. The group was disadvantaged because the proportion of those who could pass was smaller than that of white or younger candidates. It was always open to a respondent to show the PCP was justified (paragraphs 23-30 of judgment).
The disadvantage suffered by the individual must correspond with the disadvantage suffered by the group. The disadvantage was that more BME or older candidates failed the test than white or younger candidates, and the claimants suffered the disadvantage. By contrast, if a candidate failed because s/he had not prepared properly, s/he would not suffer harm as a result of the PCP in question. Further, it was open to a respondent to show that particular claimants had not been disadvantaged by the requirement, or to demonstrate that the requirement was justified (paras. 31-36).
Mr Naeem was a Muslim prison chaplain. The Prison Service pay scheme related pay to length of service. Average pay for Muslim chaplains was lower than that of Christian chaplains because Muslims had only been employed since 2002. In Naeem the PCP was the incremental pay scale. The question was whether the PCP could be justified. The Court declined to interfere with the Tribunal’s factual finding that the pay differential was justified and dismissed Mr Naeem’s appeal.
Barbara Zeitler / 26th Apr 2017
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