The recent decision in Essop v Home Office and Naeem v Secretary of State for Justice  UKSC 27 brings some much-needed clarity and simplicity to the law on indirect discrimination.
Employment law is a classic example of law which should be simple and accessible, in particular to laypeople, but which is, in practice, horrendously complex. Discrimination law is no exception.
In Essop, Lady Hale started out by noting that “discrimination ought to be an easy concept, although proving it may be harder. But we do not live in an ideal world and the concepts are not easy . . .”
Indirect discrimination requires that a provision, criterion or practice places persons with whom the alleged victim shares their protected characteristic at a particular disadvantage when compared with persons with whom they do not share that characteristic.
The principal issue of law raised in Essop was whether proving indirect discrimination requires that the reason for the disadvantage suffered by the group be established. The similar issue raised in Naeem was whether the reason for the disadvantage suffered by Mr Naeem had to be related to his protected characteristic of religion or race.
The judgment in Essop provides an interesting discussion of how discrimination law has evolved (significantly, protections have become wider over time, rather than narrower), and contrasts direct discrimination (which expressly requires a casual link between the characteristic and the treatment) with indirect discrimination (which requires a causal link between the PCP and the particular disadvantage). The discussion of course goes further (paras 23 – 34, if anyone is interested).
But the take-home message is at para 33:
“In order to succeed in an indirect discrimination claim, it is not necessary to establish the reason for the particular disadvantage to which the group is put. The essential element is a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual.”
That, thought Lady Hale, did not unduly disadvantage the Respondent, who could always (in principle) rely on objective justification.
A helpful decision, and a useful reference point for indirect discrimination claims in future.
(As a postscript:
Naeem doesn’t really change anything. In so far as it is relevant, a summary is as follows:
In Naeem, the reason why the PCP (related to a specific pay scale) put the group (Muslim chaplains) at a disadvantage was known: it depended on length of service and Muslim chaplains had, on average, shorter lengths of service than Christian chaplains. So the PCP put the group at a particular disadvantage; Mr Naeem suffered that particular disadvantage and so the question became whether the PCP (specifically, whether the steps being taken to move towards a new pay system) could be justified as “a proportionate means of achieving a legitimate aim”. But that was a factual question: “. . . if it was not fully explored before the Employment Tribunal it is not for the EAT or [the Supreme Court] to do so.”)