A labour lawyer will always get a little shiver of excitement when an employment matter makes it all the way to the Supreme Court. It is a bit like the Royal Family coming to visit your home town, an occasion for lots of fresh paint and bunting.
It should also mean that a significant point of our law is about to be affirmed or changed, so in the joined cases of Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice decided earlier this month, there was … well, mild disappointment, really. While quite interesting for lawyers, the decision does not provide much that will be hugely ground-breaking for employers in practice. The two cases relate to indirect discrimination, i.e. the imposition by the employer of a provision, criterion or practice (PCP) which disproportionately affects those with a particular protected characteristic, affects the claimant himself and cannot be justified, i.e. shown to be a proportionate means of achieving a legitimate aim.
The facts of Essop can be used as an example. Here staff were required to pass a skills assessment in order to be promoted. Black and minority ethnic (“BME”) and older candidates had a proportionately lower pass rate than white and younger candidates. There was no evidence to explain this differential, and in particular nothing to show why or what it was about the assessment which linked some component of it to age or race in any way. Did that mean that the requirement to pass the assessment could not be proved to be discriminatory? The ET thought it did, the EAT that it did not, the Court of Appeal that it did again and the Supreme Court, putting an unreturnable end to this judicial ping-pong, that it did not. In other words, the Supreme Court found there was no need for the claimant to explain why the test disadvantaged BME and older candidates. It was enough that it did.
So as prospective indirect discrimination claimant your job is now somewhat easier. Identify your PCP, find some supportive statistics about its impact on people with whom you share a protected characteristic, and you are off to the races, without needing to establish any factual connection between the PCP and that characteristic. However, what you will still need to do is show a causal connection between the PCP and the disadvantage you say you and others have suffered as a result of it. That is not usually difficult – if the PCP is to pass an assessment before you can be promoted, then if you fail it you won’t be, and that is the disadvantage.
Lessons for employers
It is worth a recap of some of the less obvious points that can also be important in indirect discrimination matters:
- There needs to be a PCP that is applied to the complainant – bear in mind that there is no need for the PCP to be anything formally set down and that a one-off action or decision can still be a PCP.
- The PCP puts or would put those who share the complainant’s protected characteristic at a particular disadvantage – so the PCP must affect a wider group than just the complainant, but it does not need to affect everyone who shares the protected characteristic. For example, using Essop, it would not derail the claim to show that one BME or older person passed the test.
- Even if a complainant falls within a protected characteristic group who appear to suffer a particular disadvantage, an employer can still point out that that particular individual was not disadvantaged by the PCP. For example, using Essop again, a BME or older person could not claim indirect discrimination where he actually failed the test because he did not bother to revise or turn up for it.
- Don’t forget that a PCP can be justified even where it does disproportionately affect a group with a protected characteristic. However, this is maybe easier said than done. Proving that your assessment is a proportionate means of achieving a legitimate aim includes considering whether any discriminatory effect of it could be lessened or removed. But if you don’t know what bit of the assessment is causing that effect, how can you tweak it to reduce or remove it? Hopefully employers can take comfort from the Court’s statement that the “requirement to justify a PCP should not be seen as placing an unreasonable burden upon respondents”.
- A wise employer will monitor how its policies and practices impact on different protected groups and if it finds evidence of disparate impact it will try to see what can be modified to remove it while still achieving the result desired from the imposition of the PCP in the first place. Being seen to have thought about the issue will take you a long way in the justification stakes.