Supreme Court Rules on Indirect Discrimination Test

In the joint cases of Essop and others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice [2017] UKSC 27, the U.K. Supreme Court examined the test for establishing indirect discrimination. 

Indirect discrimination occurs where an employer has a provision, criterion or practice (PCP) which is applied equally to all employees but puts a particular group at a disadvantage. In Essop, government employees brought claims for indirect race and age discrimination, alleging that the requirement to pass a certain skills test was a PCP which placed black, ethnic minority and older employees at a disadvantage because those employees had much lower pass rates than white and younger employees. In Naeem, an imam employed as a chaplain by the U.K. prison service brought claims for race and religious discrimination, alleging that a length of service criterion applied to the chaplains’ pay scheme was a PCP which placed him at a disadvantage because the average pay for Muslim chaplains was lower than that of Christian chaplains. 

The Supreme Court held that it was not necessary for the claimants to show the reason why the PCPs placed them (and the other employees who shared the same protected characteristics) at a substantial disadvantage; it was sufficient that it did. The key requirement was to prove that there was a causal connection between the PCP and the disadvantage suffered and it was commonplace for this to be established using statistical evidence. However, the claim will be unsuccessful if the employer can show that the PCP is objectively justified, i.e., a proportionate means of achieving a legitimate aim. In Naeem, the prison service successfully proved that the PCP was objectively justified and so the case was dismissed; the Essop case was remitted to the Employment Tribunal.

This decision arguably makes it easier for employees to bring indirect discrimination claims, and employers are advised to follow the Supreme Court’s guidance that “a wise employer” should monitor its policies and practices and modify them where they have a disparate impact on a particular group.