Indirect discrimination – A welcome clarification?
In the recent decisions of Naeem v Secretary of State for Justice and Essop and Others v The Home Office at the Court of Appeal provide some helpful guidance as to the meaning of indirect discrimination.
In both of these cases, the Court of Appeal took a limited view as to the meaning of indirect discrimination.
Section 19 of the Equality Act 2010 states:
- 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.
- For the purpose of sub section (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if
- A applies, or would apply, it to persons with whom B does not share the characteristic.
- 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,
- Or it puts, or would put, B at that disadvantage, and
- A cannot show it to be a proportionate means of achieving a legitimate aim.
The facts – Naeem v Secretary of State for Justice
A Muslim prison chaplain complained to the Employment Tribunal that the pay scale which was based on length of service was indirectly discriminatory.
He alleged that because the Prison Service only recruited Muslim chaplains since 2002, they were likely to have shorter service and subsequently a lower rate of pay compared to their Christian counterparts.
The Court of Appeal held that the reason for the difference in pay had nothing to do with religion, but was simply due to the length of service. Accordingly, an employer can defend a claim for indirect discrimination by showing that an apparent impact is the result of non-discriminatory factors.
The facts – Essop and Others v The Home Office
In this case, the Claimants were civil servants who had to pass a core skills assessment test in order to qualify for promotion.
An impact assessment revealed that BME (black and minority ethnic) employees over the age of 35 were less likely to pass the test than white employees and younger candidates, although no evidence was presented. The Claimants were all BME and over 35.
The Court of Appeal held that in order to establish indirect discrimination, the Claimants had to show that they had failed the test for the same reason that BME candidates were generally more likely to fail. Accordingly, it was necessary for the Claimants to show individual reasons why they failed the test.
In its helpful decision, the Court of Appeal held that for claims for indirect discrimination to be successful, there was a requirement for something more than a provision, criterion or practice that caused a particular disadvantage.
In addition, the Court of Appeal held that there also had to be some examination of the reason why the disadvantage arose.
This is helpful news for employers as this restricts the way in which claimants can bring claims for indirect discrimination.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.