No Reason Why

Indirect Discrimination can occur from the policies and procedures of an Organisation, which puts some people at a disadvantage who share protected characteristics, such as age, disability, sex or sexual orientation. In order for a claim of indirect discrimination to held unlawful, it is necessary that the employer can show an ‘objective justification’. This would involve demonstrating a proportionate means of achieving a legitimate aim, such as the economic needs of the business. Two cases have been recently decided in light of what is required when assessing a disadvantage and they have reinforced that there is no need to evidence the reason why there is a disadvantage caused by a PCP (Provision, Criteria or Practice). It is sufficient enough that a particular group with a protected characteristic is disadvantaged. The grounds for indirect discrimination is focused more on race/age and religion.

In the case of Essop v Home Secretary (UK Border Agency) 2017, the Claimants were required to pass a core skills assessment test in order to apply for a promotion. It was reported that Black and Minority Ethnic candidates or candidates over the age of 35 were less likely to pass the test and there was no reason proposed as to why this was the case. It was originally decided that by the Employment Tribunal that the Claimant would need to prove the reasoning for why the outcome of the testing assessment were distinctly different for the relevant protected characteristics of race and age. This decision was upheld by the Court of Appeal.

The Supreme court has now given a judgement as to whether a reason is needed to be provided to establish discrimination in relation to disparate impact. It was determined that it is not necessary to provide an express explanation as to the reasons why a particular PCP puts one group at a disadvantage when compared with others. It is also held that it is not necessary that all the members of the group be at a disadvantage.
The case of Naeem v Secretary of State for Justice 2017 was also delivered alongside Essop. In this case the Claimant was an imam who worked in a Prison Service as a chaplain. The Christian chaplain had been employed for a longer period of time than the Muslim chaplain, and therefore had a higher average pay. The claim was that incremental pay scheme indirectly discriminated against the Muslim chaplains. However, the Supreme Court held that the disadvantage suffered by Naeem was no more than necessary of any job transition to a new pay scale, and therefore the PCP was objectively justified.

Overall, the Essop case has been remitted to a fresh Employment Tribunal and the Naeem case has been dismissed. Although these cases have little effect as to how employers treat their employees in practice, they do clarify a complexed area of law and makes it’s easier to establish indirect discrimination.

Contact our Experienced Employment Lawyers London

If someone requires advice as to anything discussed, please call us on 0330 221 0684
Indirect Discrimination can occur from the policies and procedures of an Organisation, which puts some people at a disadvantage who share protected characteristics, such as age, disability, sex or sexual orientation. In order for a claim of indirect discrimination to held unlawful, it is necessary that the employer can show an ‘objective justification’. This would involve demonstrating a proportionate means of achieving a legitimate aim, such as the economic needs of the business. Two cases have been recently decided in light of what is required when assessing a disadvantage and they have reinforced that there is no need to evidence the reason why there is a disadvantage caused by a PCP (Provision, Criteria or Practice). It is sufficient enough that a particular group with a protected characteristic is disadvantaged. The grounds for indirect discrimination is focused more on race/age and religion.

In the case of Essop v Home Secretary (UK Border Agency) 2017, the Claimants were required to pass a core skills assessment test in order to apply for a promotion. It was reported that Black and Minority Ethnic candidates or candidates over the age of 35 were less likely to pass the test and there was no reason proposed as to why this was the case. It was originally decided that by the Employment Tribunal that the Claimant would need to prove the reasoning for why the outcome of the testing assessment were distinctly different for the relevant protected characteristics of race and age. This decision was upheld by the Court of Appeal.

The Supreme court has now given a judgement as to whether a reason is needed to be provided to establish discrimination in relation to disparate impact. It was determined that it is not necessary to provide an express explanation as to the reasons why a particular PCP puts one group at a disadvantage when compared with others. It is also held that it is not necessary that all the members of the group be at a disadvantage.
The case of Naeem v Secretary of State for Justice 2017 was also delivered alongside Essop. In this case the Claimant was an imam who worked in a Prison Service as a chaplain. The Christian chaplain had been employed for a longer period of time than the Muslim chaplain, and therefore had a higher average pay. The claim was that incremental pay scheme indirectly discriminated against the Muslim chaplains. However, the Supreme Court held that the disadvantage suffered by Naeem was no more than necessary of any job transition to a new pay scale, and therefore the PCP was objectively justified.

Overall, the Essop case has been remitted to a fresh Employment Tribunal and the Naeem case has been dismissed. Although these cases have little effect as to how employers treat their employees in practice, they do clarify a complexed area of law and makes it’s easier to establish indirect discrimination.

Contact our Experienced Employment Lawyers London

If someone requires advice as to anything discussed, please call us on 0330 221 0684