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  • Overview

    The field of indirect discrimination has always been a bit of a mystery to some employers. In binary terms, if there is clear disadvantage in treatment between a woman and her male comparator, then direct discrimination is easily provable and for employers facing such a claim, they can successfully defend it by showing that the reasons for differential treatment were not because of sex.

    In the arena of indirect discrimination, however, the principles are not so easy to grasp. Helpfully a very big case, decided last month, on indirect discrimination, has re-affirmed some principles and helped to raise the profile of these types of discrimination claims, making it easier for employers to be alive to the potential for such clams to arise and to be ready to deal with them.

    In 2014, Mr Essop brought a claim against his employer, the Home Office, for indirect discrimination. He was an immigration officer from an ethnic minority and did not pass a core skills assessment to be eligible for promotion. He was not the only one – some 35 other officers, also from ethnic minority backgrounds, failed the test without any explanation of why.

    In a nutshell – indirect discrimination law

    To succeed in an indirect discrimination claim, a claimant needs to show that an employer’s provision, criterion or practice (PCP) puts people sharing a protected characteristic at a particular advantage. For example, if an employer imposes a height restriction that favours men who are statistically taller, this may put women at a disadvantage. Or for a woman who has children, certain requirements relating to working hours or place of work may indirectly discriminate against you, because statistically, more women are primary carers of children and can be adversely affected by long distances to work or longer hours.

    In this case, before the highest justices in the land, statistics showed that a high number of people from ethnic minority backgrounds were disproportionately likely to fail the test.

    Attention focuses on objective justification

    An employer can justify the disadvantage suffered by one group of people with protected characteristics, e.g. people following a particular religion if it has legitimate aim (usually business related) for the PCP and has acted proportionately, i.e. that the PCP is a proportionate means of achieving that aim. Take the requirement to work on Sundays. On the face of it, this may look like the employer is indirectly discriminating against practising Christians. But if that employer were a premier league football club, there would be a commercial justification to require that player to be in the team at kick off on a Sunday.

    In Mr Essop’s case, there was no dispute that a high number of people sharing the same particular characteristic were at a particular disadvantage. The issue here, however, was the reason why this assessment put people at a disadvantage. And that is what the Home Office argued that its employees like Mr Essop needed to show or present evidence about.

    In the first instance, tribunal panel in the ET decided that failing candidates were required to identify the reason for their failure. On appeal by Mr Essop, the President of the EAT disagreed. The matter then went to the Court of Appeal before finally reaching the Supreme Court.

    The Supreme Court ruled that the question of “why” (reasons for the disadvantage suffered by the Equality Act protected group) is irrelevant. All an employee has to show is that there is link between the PCP implemented and the disadvantage suffered by the group. The disadvantage will often be obvious, and in this case, it was. That Mr Essop and his colleagues from an ethnic background all failed to make the successful selection for promotion, because of the assessment for selection process.

    This case may look like good news for employees and the unions have welcomed the decision. The good thing is that employers  will be more aware of the impact of indirect discrimination law and on the areas around terms and conditions, policies and procedures, eligibility for job selection and promotion, to name but a few where this type of employment law features more often.

    If you would like to further discuss any of the information included above, please contact Elizabeth Maxwell on 01322 422551 or by emailing elizabeth.maxwell@ts-p.co.uk.

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