The UK Supreme Court has heard two appeals together relating to claims of indirect discrimination on the grounds of race and/or age and/or religion.
In the first case, the appellant Mr Essop argued that he had suffered indirect discrimination on the grounds of race or age. In the second case, the appellant, Mr Naeem, claimed that he had been indirectly discriminated against on the basis of age. Delivering a unanimous judgment, the Supreme Court allowed Essop’s appeal and dismissed Naeem’s appeal.
The Court defined indirect discrimination as occurring when an employer applies a provision, criterion or practice (PCP) to people who have and who do not have the protected characteristic in question, but which puts people with the characteristic at a particular disadvantage. It is open to the employer, however, to show the PCP is a proportionate means of achieving a legitimate aim.
In Mr Essop’s case, he was the lead appellant out of 6 test cases who were all employed by the Home Office and were required to pass a Core Skills Assessment before promotion. A 2010 report showed that Black and Minority Ethnic (BME) candidates and older candidates had lower pass rates than white and younger candidates, but no-one had been able to identify the reason for this. It was claimed that the requirement to pass the assessment constituted indirect discrimination on the grounds of race or age, however the Home Office argued that the Equality Act 2010 required the appellants to prove the reasons for the lower pass rate. The Court of Appeal upheld the decision of the Employment Appeal Tribunal Judge, finding in favour of the Home Office.
In Mr Naeem’s case, he worked as an imam in the Prison Service. Up to 2002, imams were not employed on a salaried basis. Mr Naeem became a salaried employee in 2004 – the salary for Prison Service chaplains involved a service increment, and as Christian chaplains had been employed on a salaried basis for a longer time than Muslim chaplains, they had higher average basic pay. It was argued that this incremental pay scheme was indirectly discriminatory against Muslim or Asian chaplains. This claim was dismissed by the UK Employment Tribunal, then by the Employment Appeal Tribunal on the basis that no indirect discrimination was shown as chaplains employed before 2002 should be excluded from comparison. The Court of Appeal upheld this dismissal, holding that Naeem had failed to show that the disparate impact of the scheme was particular to race or religion as protected characteristics.
In allowing Essop’s appeal, Lady Hale held that it was irrelevant that some BME or older candidates had passed the assessment. It was sufficient to show that members of the group failed the assessment disproportionately in comparison to those who did not have the characteristics in question. There was no requirement for an explanation as to why the PCP in question puts on group at a comparative disadvantage, merely that it does.
Conversely, Mr Naeem’s appeal was dismissed on the basis that the reason why the pay scale in question puts Muslim chaplains at a disadvantage is known, it being that Muslim chaplains have an average shorter length of service. The scheme in question applies equally to all chaplains and the length of service increment was recognised as having a legitimate aim which was proportionate in its implementation, as the disadvantage suffered by Naeem was no more than necessary.
Click here for the full judgment in Essop v Home Office and Naeem v Secretary of State for Justice.