Indirect Discrimination - but why is it happening?

As legal practitioners may know, indirect discrimination occurs when an employer implements a "provision, criterion or practice" (or PCP) which affects the entire workforce, but which in reality puts an employee (or some employees) with a certain "protected characteristic" at a disadvantage compared with others.

The "protected characteristics" that can lead to indirect discrimination include things like age, race and religion.

Unless the employer can show that the policy or practice is justified - which means proving that the PCP is "a proportionate means of achieving a legitimate aim", the PCP will be indirectly discriminatory.

The Supreme Court recently handed down a judgment in two related cases of indirect discrimination, which is worth taking note of.

Essop v Home Office - the facts

This first case related to a rule within the Home Office, under which employees had to pass an assessment in order to be promoted to certain roles within the organisation. A report revealed that employees of a certain race (namely, Black and Minority Ethnic "BME" candidates), and older employees, were not passing this assessment as frequently as white and younger employees.

However, no one was able to explain why this was the case.

Naeem v Secretary of State for Justice - the facts

The second case was about an Imam who was an employee of the Prison Service.

Prior to 2004, Imams were not salaried employees because the Prison Service believed that there weren't enough Muslim prisoners to justify this. In 2004 however, the Imam became a salaried employee, and therefore started to benefit from a pay scheme which would allow his pay to increase over time.

The Imam claimed that this pay scheme was indirectly discriminatory because Christian chaplains working for the prison tended to have longer periods of service, which meant they ended up on higher salaries than the Muslim Imams.

The Debate

The question in both of these cases was whether an individual claiming indirect discrimination needs to be able to explain why the PCP discriminates against certain groups of people.  

The answer was no.

In the Essop case, it didn't matter that no-one could explain why BME and older employees were not passing the assessment as frequently as white candidates. It would be sufficient for the BME and older employees (both as a group and as individuals) to be able to show statistically that the assessment was putting them at a disadvantage compared with other candidates.

The case has been sent back to the Employment Tribunal to be re-heard on this basis.

Similarly, in the Naeem case, the Imam did not need to be able to explain why Christian chaplains tend to remain as employees of the Prison Service for longer periods of time than Imams - it was enough that he could show that this did happen.

However, although in the Naeem case indirect discrimination was found to exist, the Employment Tribunal had already held that the Prison Service could justify their pay scheme as a proportionate means of achieving a legitimate aim, so the Imam's claim was dismissed.

Practical Points

Given the clear message this judgment sends about the level of proof a claimant does (or more accurately, does not) need to satisfy in order to establish indirect discrimination, we would advise employers and in-house lawyers to:

  • Make sure that your company's employment practices and policies are reviewed carefully and regularly for any signs of potential discrimination.
  • Keep in mind that discrimination can be found to exist even if not everyone with the "protected characteristic" is put at a disadvantage. It is often enough that the proportion of those suffering the disadvantage is greater than the proportion of those without the "protected characteristic".
  • Remove, or take further advice on, any aspects of these policies which you believe could lead to bias.
  • Ensure that managers and staff receive adequate training and are alert to the issue of discrimination.

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