Decisions of the Supreme Court in Essop v Home Office & Naeem v Secretary of State for Justice
The case of Essop concerned claims of indirect age and/or race discrimination. The Claimants argued that BME candidates and those aged 35 and over had a proportionately lower pass rate than white/younger candidates in a Core Skills Assessment. In Naeem, Muslim prison chaplains brought claims for indirect discrimination on the basis that they had a lower average pay than Christian prison chaplains, who tended to be higher up the pay scale, having been employed for longer.
In Essop, the Employment Tribunal fixed a Pre Hearing Review to consider whether the Equality Act required the Claimants to prove the cause of the disadvantage suffered. The Tribunal had initially held that the reason for the disadvantage did require to be shown. This was overturned by the EAT, however the Court of Appeal agreed with the tribunal that claimants were required to show the reason why the provision, criterion or practice (PCP) put them at a particular disadvantage.
In Naeem, the Employment Tribunal found that the pay scheme was indirectly discriminatory but that it was objectively justified (as pay scales were a proportionate means of achieving a legitimate aim.) Each side appealed to the EAT who found that there was in fact no indirect discrimination as chaplains employed prior to the introduction of Muslim chaplains into the prison service should be excluded from the comparison. The Court of Appeal dismissed Mr Naeem’s appeal, holding that it was also necessary to show that the reason for the disadvantage was related to the protected characteristic.
The Supreme Court recognised that there has never been an express requirement for an explanation of the reasons why a particular PCP puts a group at a disadvantage. The necessary causal link is between the PCP and the disadvantage as opposed to between the characteristic and the treatment. Furthermore, a PCP need not cause every member of the group sharing the characteristic to suffer the same disadvantage and indeed there could be a number of reasons why one group may find it harder to comply with the PCP. It was recognised that it is common for disadvantage to be established on statistical evidence and in any event, the employer may show that the PCP is justified.
In the case of Essop, the appeal was upheld as it was recognised that there is no need to prove why the PCP causes the disadvantage. The case was then remitted to the Employment Tribunal for consideration.
In the case of Naeem, the situation was slightly different because the reason for the disadvantage (i.e. the comparatively shorter length of service) was known. The Supreme Court did not accept that it was necessary for the reason behind the PCP to be related to the protected characteristic in order for indirect discrimination to occur, however they did not interfere with the tribunal’s assessment that the treatment was justified and as a result the appeal was dismissed.
Implications for Employment Law
The decisions of the Supreme Court are important for practitioners as they confirm that in the case of indirect discrimination, the focus is very much on disadvantaged groups. It is not for an individual Claimant to have to show why they were disadvantaged. It is not all bad news for employers, however, as they can still seek to show that the treatment was justified. Furthermore, the fact that employees need to demonstrate that there is a causal link between the PCP and the disadvantage means that there is scope for an employer to argue that the particular claimant was not put at a disadvantage by the PCP, but there was in fact another reason why the disadvantage was suffered.