The Supreme Court has released the long awaited judgments of Essop and others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice which confirms that a claim for indirect discrimination may be successful without the need to prove the reason for a particular disadvantage a group has suffered, compared to another. It is sufficient to prove that the group in question has suffered a disadvantage.
The issue here was essentially that while direct discrimination has been understood as treating one less favourably than another for some time, indirect discrimination has proven more difficult to define in statutory terms.
The law on indirect discrimination prevents any provision, criterion or practice (PCP) that puts or would put people with a particular protected characteristic at a disadvantage.
The following 6 points were established:
- There has never been any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage compared to another, despite how obvious the reason may be, it is enough that it does;
- It is essential to prove a causal link between the PCP and the particular disadvantage suffered by the group and the individual so as to ensure equality of treatment and combat against hidden barriers which may hinder this aim;
- There will be many reasons why one group may struggle to comply with a PCP compared to another and it is important to remember that the reason for the disadvantage suffered may not always be unlawful; the point is that it may still indirectly discriminate a particular group;
- There PCP in question need not put every member of the group sharing the protected characteristic at a disadvantage in order for a case to be successful;
- Indirect discrimination may be established on the basis of statistical evidence;
- A PCP may be permissible in law, as it is always open to a respondent to show that the PCP is objectively justified, which should not be seen as placing an unreasonable burden on Respondents nor should there be any stigma or shame in doing so.
These key points lead the Court to conclude that there is no need for a claimant to prove the reason why they have suffered a particular disadvantage. The key factor is that there is a causal link between the PCP and the disadvantage suffered by the group and the individual.
The Supreme Court has reinforced the point that the law on indirect discrimination is in place to protect against ‘disguised’ discrimination. Therefore, while it may not be possible to identify the specific aspect of the PCP which results in a disadvantage, this will not prevent a claim for indirect sex discrimination being established.
Employers should take advice from the Jackson Boyd employment team if there are any concerns that there are any policies or practices in place which have a disparate impact on particular groups, and if so, whether there exists a justification for operating the policy or practice.
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