UK Supreme Court restores concept of indirect discrimination

Dr Erica HowardIn her latest blog post, equality and discrimination law expert Dr Erica Howard welcomes this week’s Supreme Court judgment relating to indirect discrimination.

In September 2015 in a blog post on this site, I wrote about a case of the Court of Justice of the European Union (CJEU) which raised doubts about the decision of the Court of Appeal in Home Office (UK Border Agency) v Essop and others.

The Court of Appeal, in that case, required a much stricter test for indirect discrimination than the CJEU and this test made it very difficult for a claimant to establish a case for indirect discrimination. In my previous blog, I argued that the Court of Appeal decision should be overturned in the subsequent appeal to the Supreme Court. And, in its judgment handed down on 5 April 2017, the Supreme Court did do so, and suggested that the approach of the Court of Appeal can be said to “deprive indirect discrimination of much of its content” (para 35).[1]

Indirect discrimination, according to Lady Hale (who gave the leading judgment and with whom the other Law Lords in the case agreed) “is meant to avoid rules and practices which are not directed at or against people with a particular protected characteristic but have the effect of putting them at a disadvantage” (para 1). ‘Protected characteristics’ refers to the grounds on which discrimination is prohibited under the Equality Act 2010, while ‘rules and practices’ are referred to as a ‘provision, criterion or practice’ (PCP).

Photo by Live4Soccer (CC 2.0)

Photo by Live4Soccer (Creative Commons 2.0)

Indirect discrimination can thus be said to occur where a PCP is applied to every employee equally, but where some employees cannot comply with the PCP because of a protected characteristic. However, indirect discrimination is not against the law if it is objectively justified. This means that the PCP must have a legitimate aim and that the means used to achieve this aim are proportionate.

The case concerned a number of people who worked for the Home Office. To be eligible for promotion, an employee at the Home Office had to pass a Cores Skills Assessment (CSA). This was a generic test, which was not related to any particular job. The claimants argued that this test was indirectly discriminatory based on race and/or age as BME (black and ethnic minority) people and older employees were less likely to pass the test.

In support of their claim they brought forward evidence from a report commissioned by the Home Office, which showed that the BME pass rate was 40.3 per cent of that of white candidates, while the pass rate of people age 35 years or older was 37.4 per cent of that of those below 35 (para 9). If we look at what we said above: indirect discrimination can thus be said to occur where a PCP (in this case the CSA) is applied to every employee equally, but where some employees cannot comply with the PCP because of a protected characteristic (in this case because of race and/or age).

It almost made the concept meaningless.

The Home Office argued that the claimants, to establish indirect discrimination, were required to prove what the reason for the lower pass rate in the CSA was; something the claimants contested. The Employment Tribunal agreed with the Home office, but the Employment Appeal Tribunal found that this was wrong and that claimants did not have to prove the reason for the lower pass rate. The Court of Appeal then held that it is “necessary in indirect discrimination claims for the claimant to show why the PCP has disadvantaged the group and the individual claimant” (para 57).

The Court of Appeal held that the original claimants had not shown why BME employees and employees of 35 and over were disadvantaged and thus there was no indirect discrimination. The Court of Appeal thus did not have to consider the objective justification test as the case fell at the first hurdle. It allowed the appeal against the Employment Appeal Tribunal decision by the Home Office. The test applied by the Court of Appeal put the threshold for indirect discrimination so high that it almost made the concept meaningless.

The UK Supreme Court allowed the appeal by the claimants and overturned the Court of Appeal test. In its judgment, the Supreme Court looked at the developments of the definitions of indirect discrimination in the Sex Discrimination Act 1975 and the Race Relations Act 1976 (now both repealed and replaced by the Equality Act 2010) to implement EU law (paras 18-23).

It concluded that “it would be inconceivable that the later versions of the concept [of indirect discrimination] were seeking to cut it down or to restrict it in ways which the earlier ones did not” because the trend of equality legislation since the 1970s has been to reinforce the protection given (para 23). The Supreme Court considered that “in none of the various definitions of indirect discrimination is there any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others … It is enough that it does” (para 24).

This is a very welcome development

The Supreme Court also stated that the PCP does not need to put every member of the group sharing the protected characteristic at a disadvantage because “the fact that some BME or older candidates could pass the test was neither here nor there. The group was at a disadvantage because the proportion of those who could pass was smaller than the proportion of whiter and younger candidates” (para 27). It was also well established that particular disadvantage could be established using statistics (para 28).

Therefore, the Supreme Court concluded that it is not necessary to establish the reason for the particular disadvantage (para 33) and that “any other approach would deprive indirect discrimination of much of its content”. Based on these considerations, the Supreme Court allowed the appeal and remitted the claims to be determined by the Employment Tribunal in accordance with the judgment. This means that the Employment Tribunal will now have to consider the objective justification test.

This is a very welcome development and fits in much better with the judgments of the Court of Justice of the European Union on indirect discrimination in the case discussed in my previous blog post and in other cases. Many saw the Court of Appeal’s decision as almost signalling the end of indirect discrimination, but the Supreme Court, in a decision which clearly explains a number of salient features of the concept, has made it meaningful again and has clarified the law in this area.

[1] The case was heard together with Naeem v Secretary of State for Justice, and the judgment concerns both cases, but this blog will only look at the Essop case as this is important for the interpretation of the concept of indirect discrimination in the Equality Act 2010.

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