Are Claimants Required To Show The Reason Why a PCP Puts Them at a Particular Disadvantage?

...required to show the reason why a provision, criterion or practice (PCP) puts them at a particular disadvantage compared to others when bringing a claim for indirect discrimination.

Facts

Essop and others v Home Office

Mr Essop, was one of 49 people employed by the Home Office, who were required to pass a Core Skills Assessment (CSA) as a pre-requisite to promotion to 'HEO' grade. In 2010, a report established that Black and Minority Ethnic (BME) and older candidates scored lower CSA pass rates as a group than white and younger candidates. The Claimants brought claims against the Respondent alleging that the requirement to pass the CSA constituted indirect discrimination on grounds of race or age.

The Employment Judge held that, in order to satisfy the requirements of an indirect discrimination claim, the Claimants had to show they were put at the same detriment as the group alleged to be disadvantaged. This therefore meant that they were required to prove the reason for the lower pass rate amongst the group that shared their protected characteristic (ie why less BME or older employees were passing the exam). Although the EAT allowed an appeal by the Claimants, the Court of Appeal agreed with the decision of the Employment Judge. The Claimants then appealed to the Supreme Court.

Naeem v Secretary of State for Justice

Mr Naeem, was an imam who worked as a chaplain in the Prison Service. Until 2002, the Prison Service believed that there weren't enough Muslim prisoners to justify employing Muslim chaplains on a salaried basis. Before that date it only engaged them on a session-by-session basis. The Prison Service's PCP was the operation of a pay scheme for chaplains, which incorporated pay progression over time, with the result that pay related to length of service. Because Christian chaplains tended to have been employed for longer, they had a higher average basic pay than Muslim chaplains.

Mr Naeem worked in on a sessional basis from 2001, but became a salaried employee in 2004. He argued that the incremental pay scheme was indirectly discriminatory against Muslim or Asian chaplains and this therefore resulted in lower pay for a job where length of service served no useful purpose as a reflection of ability or experience.

His claim was rejected at first instance and his subsequent appeal was dismissed by the EAT, on the basis that the indirect discrimination was justified by the Respondent and the chaplains employed before 2002 should be excluded from the comparison between the two groups in any event. The Claimant appealed to the Court of Appeal, which held that it was not enough to show that the length of service criterion had a disparate impact upon Muslim chaplains and that the Claimant was also required to show that the reason for that disparate impact was related to the protected characteristic of race or religion. The Claimant then appealed to the Supreme Court.

Unlike the Essop claim, the reason for the differential impact of the length of service criterion was known in Mr Naeem’s case, ie the fact that Muslim chaplains weren't employed before 2002. The Supreme Court had to decide whether the reason for the disadvantage which he suffered also had to be related to the protected characteristic of his religion or race in order to be able to pursue an indirect discrimination claim.

Decision

In giving the Supreme Court's judgment, Lady Hale noted the following characteristics of indirect discrimination claims:

• There is no express requirement in the Equality Act 2010 that a claimant show why a PCP puts one group sharing a particular protected characteristic at a particular disadvantage when compared with others.
• Unlike direct discrimination, indirect discrimination does not expressly requires a causal link between the less favourable treatment and the protected characteristic. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. The reason for this is that, in dealing with hidden barriers which are not easy to anticipate or to spot, indirect discrimination aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified.
• The reasons why one group may find it harder to comply with the PCP than others are many and various. Both the PCP and the reason for the disadvantage are “but for” causes of the disadvantage, in the sense that removing either would solve the problem.
• A PCP does not have to put every member of the group sharing the particular protected characteristic at a disadvantage. So for instance in the Essop case, the fact that some BME or older candidates could pass the test is neither here nor there. The group was at a disadvantage because the proportion of those who could pass it was smaller than the proportion of white or younger candidates.
• It is common for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence, which can show a correlation between a PCP and a detriment, but correlation is not the same as a causal link.
• It is always open to a respondent to show that their PCP is justified.

Regarding a justification finding, Lady Hale appeared to signal that tribunals should be more ready to uphold such arguments, saying, "Some reluctance to reach this point can be detected in the cases, yet there should not be."

Taking these factors into account, the Supreme Court concluded that in order to succeed in an indirect discrimination claim, it is not necessary to establish the reason for the particular disadvantage to which the group is put. The essential element is a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual.

Therefore in the Essop case, the Supreme Court noted that if the evidence showed that a candidate failed the CSA because, for instance, he did not properly prepare for or failed to turn up to the exam, then he cannot be said to have suffered harm as a result of his race or age. However, the Mr Essop did not need to show why BME and older employees as groups were statistically less successful in the CSA to proceed with and indirect discrimination claim.

Similarly in the Naeem case, the Court of Appeal had said that the more recent start dates of the Muslim chaplains did not reflect any characteristic peculiar to them as Muslims. It was just that there was no need for their services as employees before 2002. The Supreme Court said that must be wrong and that the same could be said of almost any reason why a PCP puts one group at a disadvantage (for example, women being disadvantaged by a length of service criterion because they tend to have shorter service periods as a result of career breaks or later career starts flowing from child care responsibilities). However, the Supreme Court rejected Mr Naeem's appeal because it did accept that the Prison Service had been engaging in a transition to a new shorter pay scale and the disadvantage suffered by Mr Naeem was no more than was necessary during that period, so the PCP was objectively justified as a proportionate means of achieving a legitimate aim

Best Practice

The decision in these cases may be an indication that the objective justification defence, often a key battleground in such claims, could become an even more important focus. It is likely to become even more important than ever for employers to consider when implementing PCPs what the aims are, whether they may have a negative impact on employees with a particular protected characteristic and whether there are appropriate alternative methods of achieving those aims, which would not have the same impact.

For more information, please contact Bob Fahy in our Employment Law team on 01923 919 302.