In two important judgments on the scope of indirect discrimination relating to race, age and religion – Essop and Naeem – the Supreme Court has decided that there is no need for claimants to prove the reason why a provision, criterion or practice (PCP) puts them at a particular disadvantage. The Court held that it was sufficient to show that there was a causal link between the PCP and the disadvantage suffered.

The Essop case

The Essop case concerned age and race discrimination involving staff at the Home Office who were required to pass a Core Skills Assessment (CSA) in order to gain promotion to higher grades in the civil service. Investigation into CSA pass rates had revealed that candidates who were aged 35 and over or who were non-White had lower pass rates than White or young candidates. However, the reason for this disparity was not known.

The disadvantaged candidates brought an employment tribunal claim arguing that the CSA amounted to indirect discrimination on grounds of age and race. The PCP they relied upon as causing the indirect discrimination was the requirement to pass the CSA as a pre-requisite to promotion. The case passed through the tribunals and lower courts before eventually arriving at the Supreme Court.

The key question for the Supreme Court to decide was whether in order to succeed in their indirect discrimination claim the disadvantaged candidates needed to establish the reason why the group had lower pass rates than their comparators. The Supreme Court decided that it was only necessary to show that the requirement to pass the CSA had caused the candidates to suffer from disadvantage, namely that the group failed the CSA disproportionately. It was not necessary to establish the reason for this particular disadvantage.

The Naeem case

Mr Naeem was a prison chaplain who brought claims of race and religious discrimination in respect of the Prison Service pay scheme for chaplains. The scheme provided that the pay of chaplains increased over time so that pay was linked to length of service. However, the average pay of Muslim chaplains was less than that of Christian chaplains because Muslim chaplains had only been employed in the Prison Service since 2002.

Mr Naeem argued that the pay scheme was indirectly discriminatory against Muslim and Asian chaplains due to their having shorter lengths of service on average than Christian chaplains. The Supreme Court considered two issues:

1. whether the reason for the disadvantage suffered by Mr Naeem had to be related to his religion or race; and
2. whether the matter concerned all prison chaplains or only those employed since 2002.

The Supreme Court disagreed that there had to be any relation between Mr Naeem’s race or religion and the reason why the PCP in the case – the Prison Service pay scheme – put him at a disadvantage. The Supreme Court also decided that all the workers affected by the PCP should be taken into account, not just those employed after 2002.

The PCP identified was the incremental pay structure which affected all the chaplains employed by the Prison Service. This did put the Muslim chaplains at a particular disadvantage compared with the Christians. Supreme Court

Having decided that the pay scheme was indirectly discriminatory, the Supreme Court then considered whether the Prison Service could justify its operation of the pay scheme by pointing to some legitimate aim. The Court noted that when the matter had previously been considered in the lower courts, Mr Naeem had accepted that the pay scheme’s aim of rewarding length of service was a legitimate one.

The key question therefore was whether there might be alternative means of continuing to operate the pay scheme without causing disadvantage to Mr Naeem. This issue had been partially considered by the lower courts, but as it related to the facts of the case, and not whether the law had been properly applied, the Supreme Court decided that the issue was beyond its remit.

Comment

The case is good news for employees seeking to bring indirect discrimination claims. The Supreme Court’s decision that it is sufficient for claimants to show that a particular PCP is causing them to experience a disadvantage without the need to drill down into the so-called “context factors” – the socioeconomic reasons causing the disparate effect – means potential claimants have less investigation work to do before bringing a claim.

Arguably, it is for employers to enquire into the reasons by one particular group suffers from disadvantage when another does not as part of their defence to an indirect discrimination claim. Without such insight, an employer would find it difficult to rectify or justify any policies or practices that might be indirectly discriminatory.

Photograph: Coffee, books + pen by Jaclyn Clark