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Indirect discrimination Supreme Court decision

View profile for Laura Hill
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The law in relation to indirect discrimination has come under review recently in the Supreme Court decisions of Essop and Others v. Home Office (UK Border Agency) and Naeem v. Secretary of State for Justice [2017] UKSC 27.

Indirect discrimination arises when the existence of a provision, criterion or practice (PCP) within a workplace sets protected groups (for example, women) at a particular disadvantage.

In Essop, all candidates who wanted to be eligible for a promotion to Higher Executive Officer within the Home Office had to pass a specific skills assessment relevant to their particular post. The proportion of black and minority ethnic (BME) candidates and candidates older than 35 who failed was significantly higher than the proportion of white or younger candidates failing but there appeared to be no explanation for this disparity.

The Claimants with the protected characteristics brought the claim based on the fact that their specific skills assessment (the relevant PCP in this case) had disadvantaged them.

In Naeem, the pay scheme in the Prison Service for chaplains incorporates pay progression over time. Muslim chaplains had a lower average pay (£31,847 compared with the average basic pay of a Christian chaplain £33,811) due to the fact that Muslim chaplains had only been salaried in the Prison Service since 2002, as there was a lower Muslim population in prisons prior to 2002.

The issue the Supreme Court considered for both cases on appeal was whether the Claimants needed to show not only that they had suffered a disadvantage because of the PCP, but also the reason for the disadvantage suffered.



It was held by the Supreme Court in the conjoined appeals that claimants are only required to show there is evidence of a group disadvantage and are not required to show why the PCP puts them at a particular disadvantage.

This decision allowed the Claimants in Essop to be successful despite being unable to show why BME and older candidates were more likely to fail the specific skills assessment.

Proving indirect discrimination is not always easy as the burden of proof rests with the employee to show the existence of the PCP created a group disadvantage.  However, in these cases, the Supreme Court provided clarification on the law on indirect discrimination and has lowered the bar for claimants to be successful in a claim, providing there is a causal link between the PCP and the disadvantage suffered.

Because of this lowered bar, it is important to consider the impact certain practices within your business could have on your employees to ensure you do not fall foul of indirect discrimination legislation in light of the Supreme Court’s decision.