Indirect discrimination does not require a causal link between the characteristic and the treatment, the Supreme Court has held.
In Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice [2017] UKSC 27, the Supreme Court considered whether, in an indirect discrimination claim, an individual must demonstrate why they suffered a disadvantage as well as that they, and a group sharing the same protected characteristic, are disadvantaged.
Mr Essop was one of a group of 49 people employed, or who were employed, by the Home Office. A report in 2010 found that Black and Minority Ethnic (BAME) candidates and older candidates had lower pass rates than white and younger candidates of a Core Skills Assessment (CSA) required for promotion to higher civil service grades. The appellants argued that the requirement to pass the CSA constituted indirect discrimination on grounds of race and age. However, the Home Office countered the s 19(2)(b) of the Equality Act 2010 required the appellants to prove the reason for the lower pass rate.
Mr Naeem is an imam who works as a chaplain in the Prison Service. Until 2002, Muslim chaplains were hired on a sessional basis only. He became an employee in 2004, the same year the pay scheme was changed to reflect length of service. Mr Naeem argued the incremental pay scheme was indirectly discriminatory against Muslim chaplains. The Court of Appeal held it was necessary for Mr Naeem to show the reason for the impact was something peculiar to the protected characteristic of race or religion.
The Supreme Court unanimously upheld Mr Essop’s case and unanimously dismissed Mr Naeem’s case.
It found that the disadvantage in Essop was that members of the group failed the CSA disproportionately. In Naeem, it found that the disadvantage suffered by Mr Naeem was no more than was necessary as the transition to a new shorter pay scale took its course.
Giving judgment, Lady Hale said there had never been an express requirement for an explanation of the reasons why a particular action places one group at a disadvantage—it is enough that it does. She said indirect discrimination does not require a causal link between the characteristic and the treatment but does require a causal link between the action and the particular disadvantage suffered.
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