The Supreme Court has restored the traditional approach to proving indirect discrimination in its judgment in these two cases.
There are 4 types of discrimination under the Equality Act 2010 (EqA) - 6 if you include harassment and victimisation. Indirect discrimination is one of the more difficult to understand of these. As the article on the Pulman case (also in this newsletter) shows, discrimination arising from disability and breach of the duty to make reasonable adjustments also have their complexities.
Indirect discrimination is when a provision, criterion or practice (PCP) is applied which appears to treat people equally, but which in fact puts certain groups at a disadvantage. For example, an employer sets an entry requirement that all applicants must be 6 feet tall. This is on the face of it gender-neutral, but a smaller proportion of women than men will be able to comply and so the requirement will be unlawful unless it can be justified. A PCP can be justified by showing that it is a “proportionate means of achieving a legitimate aim”. Requirements for fitness levels among, say, firefighters or police officers may impact certain groups differently, but it may be that this is a genuine and valid way of ensuring that those who do those jobs can meet the physical demands of these roles.
In Essop the Claimants were civil servants who had to pass a Core Skills Assessment (CSA) in order to become eligible for promotion to higher grades. A report commissioned by the Home Office revealed that BME and older candidates had lower pass rates that white and younger candidates. The Court of Appeal had dismissed Mr Essop’s claim as he was unable to show the reason why the Home Office requirement to pass the CSA put BME and older candidates at a disadvantage.
The Supreme Court reversed this decision saying that it was not necessary in an indirect discrimination for the Claimant to show the reason why the PCP put a particular group at a disadvantage. All that was necessary was to show was a connection between the PCP and the disadvantage suffered by the group and the individual. Here the requirement to pass the CSA placed BME and older candidates at a disadvantage (for reasons unknown) and Mr Essop had been disadvantaged. The Supreme Court commented that it may be easier to prove that the PCP disadvantages a group if the reason why it does so is known, but this is just a question of evidence.
Naeem concerned the pay scales of prison chaplains which were dependent on length of service. Muslim chaplains had only been employed by the service since 2002 and their average pay was less than their Christian colleagues who had on average longer service.
The Court of Appeal said that it was not enough to show that the pay scheme linking length of service with pay had a disadvantageous impact on Muslim chaplains, but also that the impact had something specific to the protected characteristic in question, in this case the Claimant’s religion and/or race. The Court observed that in this case the reason for the pay disparity was the more recent start date of Muslim chaplains and not their race or religion.
The Supreme Court said this was the wrong approach and that there was no need for someone claiming indirect discrimination to show that any disadvantage was related to the protected characteristic. The simple fact that the PCP disadvantaged the group and the individual was sufficient. It was always open to an employer to show that the PCP was justified.
Following the judgment in these two cases it will be simpler for claimants to prove indirect discrimination as they will not have to show the reason why a PCP disadvantages them and will not have to link it to a protected characteristic they possess. They will succeed if the PCP disadvantages their group and themselves individually and that it cannot be justified.
An important point to make, though, is that in relation to mental health problems this protection is only available for people who satisfy the problematic definition of disability. The only enforcement mechanism is by an individual paying around £1200 to pursue a complaint in the employment tribunal.
We at Mind hear from numerous people with mental health problems who tell us either of their stressful ordeals at tribunal or that they don’t feel they have the mental resources to cope with the prospect of litigation. We believe that the EqA, which is reactive and relies on stressful and expensive litigation, needs to be supplemented with legislation that is more proactive in protecting the needs of people with mental health problems, and not just those who are disabled as defined by the Act.