Considering that the concept of indirect discrimination was introduced in the mid-1970s, you might have thought that the main issues would have all been sorted out by now. But in two joined cases the Supreme Court has had to set the Court of Appeal right on a couple of key points.
In Essop v Home Office civil servants were required to pass a written test in order to qualify for promotion. An impact assessment revealed that Black and Minority Ethnic (BME) staff were significantly less likely to pass the test than others – although there was no indication as to why that was. A group of them brought an indirect race discrimination claim on the basis that the requirement to pass the test placed BME staff at a particular disadvantage and that the requirement could not be justified as a proportionate means of achieving a legitimate aim. The Court of Appeal held, however, that in order to show that the individual Claimants suffered the same disadvantage as the group of BME staff as a whole, it was necessary to show why BME staff were more likely to fail and that the individual Claimants had failed the test for the same reason.
In Naeem v Ministry of Justice the issue was the pay of prison chaplains. Muslim chaplains, on average, earned less than Christian chaplains. This was because their pay scale was based on length of service and Muslim chaplains – who had only been recruited since 2002 – tended to have shorter service than their Christian counterparts. The Court of Appeal rejected claims of indirect discrimination based on religion or belief on the basis that it was clear that the reason – length of service – that Muslim chaplains were placed at a disadvantage was nothing to do with their religion.
The Supreme Court held that in each case the Court of Appeal had taken the wrong approach. In an indirect discrimination claim, what had to be shown was that there was a ‘provision criterion or practice’ (PCP) which put those sharing a protected characteristic at a particular disadvantage; put the individual Claimants at the same disadvantage – and which could not be shown to be a proportionate means of achieving a legitimate aim. There was no need to consider why the disadvantage arose – it was enough that it did. In the Home Office case the Claimants clearly suffered the same disadvantage as BME staff as a whole in that they were all denied promotion because they failed the test. There was no need to consider why they had failed. As for the prison chaplains in the Ministry of Justice case, the fact that the reason for the disadvantage was not religion simply did not matter. This was an indirect discrimination claim – not a claim for direct discrimination – so the ‘reason’ lying behind the disadvantage was not relevant.
The Supreme Court sent the Home Office case back to the Tribunal to decide whether the test applied was a ‘proportionate means of achieving a legitimate aim’. As for the prison chaplains, although they won on the interpretation of the law, they actually lost their case. The Tribunal had held that the pay scheme operated by the Ministry of Justice was a reasonable one given that the employer was seeking to reform it – and the Supreme Court held that the Tribunal was entitled to reach that decision.
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