Proving Indirect Discrimination

10 May 2017

Mr Essop and colleagues had claimed indirect discrimination. They said that they were passed over for promotion after having failed some assessments at work. Relying on their protected characteristics of age and race they alleged that older (they were over 35) and of black and ethnic minority employees had a lower pass rate than younger, white employees.

Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice

Mr Essop and colleagues had claimed indirect discrimination. They said that they were passed over for promotion after having failed some assessments at work. Relying on their protected characteristics of age and race they alleged that older (they were over 35) and of black and ethnic minority employees had a lower pass rate than younger, white employees.

Did they need to show why the provision, criterion or practice (the requirement to pass the test before being eligible for promotion) had caused them to suffer a disadvantage? Yes, the Court of Appeal originally said. A Claimant must show why their group was at a disadvantage and that that reason applied to them.

But that has now changed. The Supreme Court has held that an employee does not need to establish the reason for the particular disadvantage. What matters is that there is a causal connection between the provision, criterion or practice and the disadvantage suffered by the group and by the individual.

The Essop case was joined with the Naeem case. The latter was about an Imam’s claim that Christian chaplains in the Prison Service were more likely than Muslim chaplains to be near the top of the pay scale because the Prison Service had employed Christians for longer; length of service being relevant to progression.

Was that indirect discrimination? The Supreme Court held that although Muslim chaplains were at a particular disadvantage, the provision, criterion or practice (the incremental pay scale for chaplains) was objectively justified. The claim failed.

So, the test for showing indirect discrimination looks like this: a person will not, unlike in the case of direct discrimination, need to prove a causal connection between the treatment they received and the protected characteristic. But they will need to show a causal link between the provision, criterion or practice and the disadvantage they, and their group, suffered.


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