When bringing an indirect discrimination claim, does a claimant need to evidence the reason why a particular group is disadvantaged and then show that they, themselves, are disadvantaged for the same reason?
The Supreme Court has recently considered this question in two cases where groups sharing a particular protected characteristic had been put to a disadvantage, either by not being promoted or not progressing up a pay scale.
Essop and others v Home Office (UK Border Agency)
Mr Essop has been employed by the Home Office as an immigration officer since 1995. In order to be promoted within the Home Office, every employee had to pass a Core Skills Assessment (CSA), a generic test for all positions at the same level, regardless of the particular role. On passing the CSA, candidates would then sit a Specific Skills Assessment relevant to the particular post they sought.
A report commissioned by the Home Office revealed that black and minority ethnic candidates and older candidates had lower pass rates than non-black and ethnic minority candidates and younger candidates. The black and minority ethnic candidate pass rate was 40.3% of that of the other candidates and the pass rate of candidates aged 35 and older was 37.4% of that of those below that age. No reasoning for the statistics could be given.
Mr Essop was the lead appellant in a group of 49 employees all from black and minority ethnic backgrounds and over the age of 35. Each employee in the group, at some time, failed the CSA and was not eligible for promotion.
Mr Essop and others brought indirect race and age discrimination proceedings against the Home Office as they argued that there was a significant statistical difference between the success of older, black and minority ethnic candidates and younger non-black and minority ethnic candidates that sat the CSA and there was no particular personal factor specific to any individual that might explain why they had failed the test.
Mr Essop argued that under the Equality Act 2010 they did not need to prove what the reason for the lower pass rate was, it was sufficient that they were in the disadvantaged group and had failed the CSA. The Home Office argued that the claims could only succeed if the claimants could show the reason for the group disadvantage and that the same reason also disadvantaged the individuals.
Naeem v Secretary of State for Justice
Mr Naeem began working as an imam for the Prison Service in June 2001, at first on a sessional basis, becoming a salaried employee in October 2004. The Prison Service operates an incremental pay scale. Like all other employees, Mr Naeem entered the pay scale at the lowest point and would be given the opportunity to move up the scale on an annual basis owing to length of service and performance appraisals. From the time Mr Naeem became a salaried employee it would take him 9 years to progress to the top of the pay scale (subject to satisfactory appraisals), although the service was trying to gradually reduce this to 6 years.
Before 2002, Muslim chaplains were engaged with the Prison Service on a session only basis because the Prison Service believed that there wasn’t enough demand to justify salaried roles. Given the length of service criterion, it was more likely that Christian chaplains would sit at the top of the pay scale. The average basic pay for Muslim chaplains was £31,847, whereas the average basic pay for Christian chaplains was £33,811.
Mr Naeem brought claims for indirect discrimination on the grounds of religion, arguing that he had been disadvantaged as a Muslim chaplain by the application of the length of service criterion. It meant that the average basic pay of Muslim chaplains was lower than that of Christian chaplains.
Again, the Supreme Court was asked to consider whether it was necessary for Mr Naeem to show the reason for the disadvantage caused to the disadvantaged group (Muslim chaplains) as well as showing that the same reason caused him disadvantage.
The Supreme Court found that there is no requirement for a claimant to prove the reason why a provision, criterion or practice (PCP) would put a group who share the same protected characteristic at a disadvantage. In fact, the PCP does not need to put every member of the group that share the same protected characteristic at a disadvantage but rather, the essential element is the connection between the PCP and the disadvantage suffered by both the group and the individual.
In the case of Essop, it was sufficient for the claimant to show that the black and ethnic minority and/or older candidates were disadvantaged, that he was part of the group and that he had failed the CSA. It would always be open to an employer to show that there was either a non-discriminatory reason for any disadvantage (such as a candidate turning up late for the assessment) or that the PCP was otherwise a proportionate means of achieving a legitimate aim. The case was sent back to the Employment Tribunal to determine the specific claim.
In the case of Naeem, the Supreme Court upheld the Employment Tribunal’s decision to reject Mr Naeem’s claim for indirect discrimination. Whilst Muslim chaplains were put at a disadvantage compared with Christian chaplains, Mr Naeem was a member of that group and was being paid less, the ET had found that the reason for Muslim chaplains not being employed pre-2002 was not discriminatory and that it was legitimate and proportionate to use length of service as a criteria to reward employees to move up the pay scale.
This case clears up a technical issue that had evolved through case law, namely the thought that claimants needed to show the specific reason why a particular group was disadvantaged by a PCP. The decision of the Supreme Court is that they don’t.
As a result, claimants bringing an indirect discrimination claim will need to evidence that there is a PCP, that there is a context factor (something which causes disadvantage to the group), there is a connection between the PCP and the group disadvantage and finally that the claimant suffered the same disadvantage as a result of the PCP. In relation to this last point, if a claimant’s disadvantage is caused by something unrelated to the PCP, the claim will fail.
If the Claimant can satisfy these elements, it will still remain open for an employer to show that any PCP was a proportionate means of achieving a legitimate aim. The Supreme Court made it clear that there was no shame in doing so as there may be very sound reasons for an employer having a PCP, even if it causes disadvantage to groups sharing a protected characteristic.
Usually, employers only realise that a PCP could be discriminatory when they receive a claim. Although it can be difficult to cover all bases, as a starting point employers should ensure that they have sound and legitimate business reasons for any PCP’s and that any disadvantage caused to a particular group is proportionate. In other words, there isn’t a better way of achieving the same thing!
If you have any queries relating to indirect discrimination or any other HR queries, contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.