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The Supreme Court on Discrimination

The Supreme Court on Discrimination

Robert Dunn examines the Supreme Court decisions of Essop and ors v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27, where the Court held that in an indirect discrimination claim, a Claimant is not required to prove the reason for any particular disadvantage to which their group is put.

THE FACTS AND THE ISSUE

Mr. Essop was a Home Office employee, and was required to pass an assessment (CSA) to obtain certain Civil Service promotions. He was the lead appellant for a group of 49 Black and Minority Ethnic (BME) and older candidates. On the basis of a 2010 Home Office Report, which established that an older or BME candidate was less likely to pass the CSA than a younger or white candidate, he alleged that the CSA requirement constituted indirect discrimination because of age or race. He could not however show the reason for this disparity. Therefore, the ET dismissed his claim, holding that Section 19(2)(b) of the Equality Act 2010 required him to prove why their pass rate was lower. Mr. Essop successfully appealed to the EAT, but this was overturned by the Court of Appeal.

Mr Naeem was a Muslim chaplain for the Prison Service, working on a sessional basis from 2001, and then as a salaried employee from 2004. Mr Naeem’s pay scheme was based on length of service. Mr Naeem alleged that, as Christian chaplains were more in demand and so were less likely to have been employed upon a sessional basis pre-2004, they were paid more under the new scheme. The ET and EAT dismissed his claim of indirect discrimination. The Court of Appeal did so too, holding that Mr Naeem had failed to prove that the reason for any particular disadvantage was something peculiar to the protected characteristic of race or religion.

THE LAW

Section 19 of the Equality Act 2010 states:

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

THE DECISION

The Supreme Court unanimously allowed the appeal, with Lady Hale giving the sole judgment.

The Court held that a Claimant must only show that the PCP caused a particular disadvantage to themselves, and to a group of others sharing their protected characteristic; it was not necessary to show the reason why [24]. There was no previous case law supporting the Court of Appeal’s interpretation, and the wording of Section 19 did not either. With reference to the (still applicable) underlying EU Council Equal Treatment Directives 97/80/EC and 2000/43/EC, it is sufficient that the PCP ‘would put’ such persons at a particular disadvantage [21]. Indirect discrimination, unlike direct discrimination, depends not on the reason for different treatment, but on the outcome of a PCP which appears neutral on its face. It depends on using statistics to show correlation, not cause. It is about achieving a level playing field and dealing with ‘hidden barriers which are not easy to anticipate or spot’ [25].

Lady Hale rejected the Respondents’ arguments that this may lead to undeserving Claimants hanging on the ‘coat-tails’ of deserving Claimants whom happened to share their characteristic. An idle older candidate for example, who simply failed to prepare for the CSA would not be able to show the PCP caused disadvantage to him individually, a crucial part of Section 19. Moreover, there would then be a ‘material difference’ under Section 23 between him and younger students whom had prepared diligently, and he would have no adequate comparator.

Moreover, it was held that the PCP need not put all in the group to a disadvantage. In example, some women can work full time without difficulty, whilst others cannot [27]. Indeed, in Essop, some older and BME candidates did pass the CSA.

Lady Hale concluded with guidance for employers. One should first attempt to eradicate any disparate impact before turning to justification in Section 19(2)(d). However, reliance upon justification is not a cause of stigma: an employer’s reason must be a legitimate one and it must have been achieved by proportionate means.

Consequently, Mr Essop’s claim was remitted to the ET. Mr Naeem’s claim however was dismissed. Although the incremental pay scale did put Muslim chaplains at a particular disadvantage compared to Christian chaplains, the Prison Service were moving to a new pay scale. This was for the legitimate reason of rewarding length of service and experience, and Mr Naeem’s disadvantage was no more than necessary in the transition period.

COMMENT

The Supreme Court’s decision in Essop and Naeem contains a wealth of useful guidance and helpful examples for navigating the law of indirect discrimination. This is sure to become a leading case.

The decision itself is a good one for Claimants. It can be difficult enough for a Claimant, especially post-ET fees, to succeed a claim of indirect discrimination considering the statistical evidence one requires. This decision prevents a Claimant having to delve further into the often complex socioeconomic, educational or cultural reasons behind the statistics, in an attempt to show they are connected to their characteristic. It is no blow for employers though. As Lady Hale was at pains to state, if an employer wishes to utilise a PCP which particularly disadvantages a group in society, they may still do so if they can prove a legitimate reason and that any disparate impact was proportionate to that aim.

 ROBERT DUNN

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