Supreme Court Judgments on Indirect Discrimination

The Supreme Court has given two important Judgments on indirect discrimination. The Supreme Court held that, for such a claim to succeed:

• A causal link is not required between the protected characteristic (such as age, race, gender, disability) and the provision, criterion or practice (PCP).
• It is not necessary for claimants to show the reason why the PCP complained of put them at a particular disadvantage.
• A causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual, is essential.
• Statistical evidence of group disadvantage can be enough.
• The PCP does not need to put every member of the group sharing the protected characteristic at a disadvantage.

The Supreme Court also underlined, it is always open to the employer to show that the PCP was justified, in other words that it is a proportionate means of achieving a legitimate aim, and there is no stigma or shame in doing so.

In Essop and others v Home Office, statistical evidence showed that black and minority ethnic (BME) and older candidates had a lower pass rate for an occupational exam – and that individual BME and older claimants suffered the corresponding disadvantage of failing the exam. The Supreme Court overturned the Court of Appeal and held that this was enough in principle to establish that there had been indirect discrimination. The case has been sent back to the employment tribunal for determination.

In Naeem v Secretary of State for Justice, the Supreme Court also overturned the Court of Appeal, deciding that a pay scale based on length of service that meant Muslim prison chaplains had lower average pay than Christian chaplains, because Muslim chaplains had only been employed full-time since 2002, was a PCP that put Muslim chaplains at a particular disadvantage. However, it went on to rule that the employment tribunal’s decision that the treatment was justified should not be overturned, so the appeal ultimately failed.