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The question is not why - the indirect discrimination tangle solved by the Supreme Court

Kiran Daurka and Yavnik Ganguly co author a blog on the legal mechanisms of indirect discrimination

Supreme Court
Kiran Daurka (pictured) is a partner in the Employment team at Leigh Day where she is assisted by paralegal Yavnik Ganguly.
In the anticipated Supreme Court ruling in the cases of the Essop and Naeem on the 5th of April 2017, Lady Hale (with whom the other Supreme Court Judges unanimously agreed) offered some clarity on the tricky legal mechanisms of indirect discrimination. In particular, Lady Hale outlined how comparison pools should be drawn for the purposes of 19(2)(b) of the Equality Act and also provided guidance on what needs to be considered when establishing particular disadvantage to a claimant.

Summary of the cases

Mr Naeem is an imam who works in the Prison Service, and who brought an indirect discrimination claim against his employer due to an incremental pay policy which he believed discriminated against Muslim chaplains. The policy meant that those with a longer length of service received a larger salary, and because Muslim chaplains have only been employed on a salaried basis since 2002, Muslim chaplains generally received less pay than Christian chaplains because Christian chaplains were higher up the pay scale based on length of service.

In the case of Essop,  the policy in question was a ‘Core Skills Assessment’ (CSA) that the employees were required to pass to become eligible for promotion to certain civil service positions. The test was generic in nature, and if employees passed they then had to sit a ‘Specific Skills Assessment’, according to the particular post they applied for. Statistical evidence provided by occupational psychologists showed that Black and Minority Ethnic (BME) and older candidates had lower pass rates for the CSA than white and younger candidates. The claimants brought an indirect discrimination claim against their employers, their particular disadvantage being the fact that they were more likely to fail the CSA than white or younger peers.

Comparison pools

Referring to the Naeem case, Lady Hale disagreed with the Employment Appeal Tribunal’s opinion that the comparison pool should only consist of chaplains employed from 2002, which is when Muslim chaplains started being hired on a salaried basis as opposed to just being paid hourly on sessions.
Lady Hale stated that all workers affected by the Provision, Criterion or Practice (PCP) should be considered, and then the impact of the PCP on workers with the protected characteristic should be compared with the impact of the PCP on workers without the protected characteristic [para 41].
This provides very practical and welcomed clarity on the issue of deciding comparator pools in indirect discrimination claims, which had until now become very restricted and prevented the PCP from being properly tested.

Particular disadvantage

Perhaps most notable were Lady Hale’s comments on what needs to be proven in relation to particular disadvantage. Her statements can be summarised as follows:
  • In indirect discrimination claims there is no statutory requirement for explanations of why a particular PCP puts one group at a disadvantage compared to another, it is enough to prove that a disadvantage exists [24]. She used this argument to overrule the decision made by the Court of Appeal in the Essop case that statistical evidence showing that BME and older employees were more likely to fail the CSA was not sufficient.
  • Distinguishing between direct discrimination claims and indirect discrimination claims, she stated that indirect discrimination claims do not require a causal link between the less favourable treatment and protected characteristic. Instead, indirect discrimination claims require a causal link between the PCP and the particular disadvantage suffered. In her reasoning she stated that, whilst the prohibition of direct discrimination seeks to ensure equality in treatment, the prohibition of indirect discrimination assumes equal treatment but aims to achieve a ‘level playing field’ where people of a particular protected characteristic group are subjected to requirements which many of them cannot meet and which are not justified as a proportionate means to a legitimate aim [25].
  •  Lastly, Lady Hale disagreed with the view that the reason a group is disadvantaged by a PCP (‘the context factor’) must relate to the protected characteristic. Using the example of women and equal pay, she commented that there is nothing peculiar to womanhood in taking the larger share of caring responsibilities in family life, yet it is acknowledged that a length of service criterion can have a disparate impact on women because they tend to take more career breaks to fulfil child caring responsibilities. Further, she stated that these context factors can be varying and can be the result of numerous PCPs working in combination. Therefore, she disagreed with the respondent’s argument in Naeem that the reason Mr Naeem was disadvantaged by the incremental pay policy had to relate to a peculiar characteristic of him being Muslim [39].

The legal analysis provided by Lady Hale in the ruling of these two cases serves as a much needed reminder of the distinction between the purposes of direct discrimination prohibition and indirect discrimination prohibition. Indirect discrimination prohibition intends to address more insidious forms of discrimination that are systemic or institutional. The causes of structural discrimination, in relation to race especially, are so numerous and interwoven that inserting a requirement to explain why such discrimination exists would inevitably have the effect of preventing the discrimination from being addressed and resolved. Lady Hale’s reasoning ensures that as long as disadvantage is being caused by a PCP without justification, employers will be required to take steps to eliminate the discrimination, regardless if why and how the PCP causes the discrimination is in itself unlawful or within the control of the employer.

This case is an important step towards addressing systemic discrimination as it finally provides much needed legal clarity.

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