Does the reason for a particular disadvantage have to be shown in an indirect discrimination claim?
No said the Supreme Court in the conjoined cases of Essop v Home Office and Naeem v Secretary of State for Justice.
Mr Essop argued that the Home Office’s internal promotion procedure indirectly discriminated against black and ethnic minority candidates and those over the age of 35. This was supported by statistical evidence that these groups had lower pass rates compared with white and younger candidates. The Home Office argued that Mr Essop had to prove the cause of the group disadvantage for his claim to be successful.
Mr Naeem, a Muslim prison chaplain, claimed that the prison’s incremental pay scheme indirectly discriminated against him on the grounds of religion and race as progression up the pay scale was dependent on length of service. Muslim chaplains were engaged on a sessional basis which meant they were less likely compared to their Christian counterparts to be given a pay rise. This case initially focused on the correct group for comparison until it reached the Court of Appeal who held Mr Naeem was required to show that the reason for the impact was related to his race and religion.
In hearing both cases together, the Supreme Court confirmed that there is no requirement for a claimant to prove why a provision, criterion or practice (‘PCP’) puts the affected group at a disadvantage. All that is needed is a causal connection between the PCP and the disadvantage (suffered by both the group and the individual). There may be contextual factors behind the disadvantage and there is no need for everyone in the group to be disadvantaged for the claim to succeed.
This decision suggests it may be easier for claimants to bring claims of indirect discrimination as they only need evidence (which may merely be statistical) that a PCP places a group at a disadvantage. Whilst there are concerns this will open the floodgates to claims, the Supreme Court was quick to remind us that there is an objective justification defence to indirect discrimination claims.