No reason for a reason: proving Indirect Discrimination after Essop

In a unanimous judgment in combined appeals, Essop and others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice [2017] UKSC 27, the Supreme Court have restored the traditional understanding of how indirect discrimination claims work and what must be proven by a Claimant to establish a prima facie case.

Mr Essop was an immigration officer who had to pass a Core Skills Assessment (CSA) in order to be eligible for promotion. A Home Office report revealed that the proportion of black and minority ethnic (BME) candidates and older candidates failing this test was significantly higher than the proportion of white or young candidates failing it. But, crucially, nobody knew why this was the case. Mr Essop and 48 of his colleagues failed in their claims for indirect discrimination on this basis and the Court of Appeal had agreed it was necessary for them to show why the requirement to pass the CSA put both BME / older candidates and them as individuals to a disadvantage.

The facts of the Naeem case presented a slightly different problem. Mr Naeem was an imam who worked as a chaplain for the Prison Service. Before 2002 Muslim chaplains had been engaged on a sessional basis only as there were not enough Muslim prisoners to justify employing them on a salaried basis. The PCP was an incremental pay scale, which had the effect of linking pay to length of service as a salaried employee. Unlike the Claimants in Essop, the cause of the disadvantage (the pay disparity) was known: it was the more recent start dates of the Muslim chaplains, many of whom had only been employed since 2002. But here the question was whether the reason for Mr Naeem’s disadvantage needed to relate to his religion or race. The Court of Appeal held that it did and the claim was rejected on the basis that the disadvantage did not reflect any characteristic peculiar to the chaplains as Muslims.

Lady Hale held that this was the wrong way to approach indirect discrimination. She confirmed that it is not necessary in such a claim to establish the reason for the particular disadvantage to which a group is put. The essential ingredient is to show a connection between a PCP and the disadvantage to both a group and an individual. Whilst this disadvantage might be easier to prove if the reason for group disadvantage is known, that is just a question of evidence.

Lady Hale said that this result flowed from certain salient features of indirect discrimination, one of which was that the reason why one group may find it harder to comply with a PCP than others (“the context factors”) might be many and various. They could be genetic (e.g. strength and height), social (e.g. certain expectations that women bear greater responsibility for caring for families) or they could be traditional employment practices (the fabled “boy’s jobs” and “girls jobs”, to borrow the Prime Minister’s recent unhelpful stereotype).

It therefore could not be right that “the context factor” had itself to be related to a particular protected characteristic. As Lady Hale poignantly observed, “there is nothing peculiar to womanhood in taking the larger share of caring responsibilities in a family. Some do and some do not”. So it mattered not that Mr Naeem was unable to say that the fact Muslim chaplains had shorter service was “peculiar to them as Muslims”.

This judgment is a particularly welcome decision for Claimants, who will not need to establish a reason for a particular disadvantage where none is easily identifiable. That approach, it is argued, is more in keeping with the fundamental hallmark of this form of discrimination: a focus on equality of outcome rather than equality of treatment. Indirect discrimination does not insist, as direct discrimination does, on an express causal link between treatment and a protected characteristic like sex, race or age. It is, as Lady Hale explains, about “dealing with hidden barriers which are not easy to anticipate or spot”.

Discrimination practitioners should note that, from an evidential standpoint, proving the fact of both group and individual disadvantage will practically be easier when one is able to point to a reason for the context factor in play. However, the inability to explain why the disadvantage operates will no longer be fatal to making out a prima facie case, which then puts the ball in the Respondent’s court to make out an objective justification.

The judgment also provides greater clarity for practitioners on the pool of comparators required in an indirect discrimination claim. By clarifying that the pool should cover all workers affected by the PCP in question, and exclude all those who are not affected by it, practitioners can more effectively tailor disclosure requests and the gathering of witness evidence on the appropriate grouping of employees.