John Cato of Cato Solicitors explains how the Supreme Court defined indirect discrimination in the case of “Essop.”
Everyone has a pretty good understanding of direct discrimination.
Say an employer refuses to employ a person because they have a protected characteristic, listed in the Equality Act 2010 as: –
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation;
then the employer has treated the potential employee less favourably than it treats or would treat others (Section 13) 1, (EqA 2010).
We could say, the employer is using a criterion to make a judgment.
So, if you apply for a job with us and on meeting you in interview I say – I cannot employ you because you are to old (1 above), then I will be applying the criterion of age.
Again, if an employer dismisses transgender employees on its workforce because of personal animosity, the criterion for continuing in employment with that particular employer is that you live in accordance with your sex at birth.
So, if an employer’s criterion is one of the protected characteristics, that is direct discrimination.
What if the employer had a criterion which was not directly discriminatory i.e. not referable to a protected characteristic, such as height – which is the usual example?
The Equality Act defines indirect discrimination as follows:
An employer (A) indirectly discriminates against an employee (B) where: –
- A applies to B a provision, criterion or practice (PCP);
- B has a protected characteristic;
- A also applies (or would apply) that PCP to persons who do not share B’s protected characteristics;
- The PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage compared to others;
- The PCP puts or would put B to that disadvantage;
- A cannot justify the PCP – i.e. A cannot show it to be a proportionate means of achieving a legitimate aim. (i.e. British Airways may say that only well sighted people can apply for a job as an airline pilot. Such discrimination would be justified because it has the legitimate aim of airline safety).
In Essop and Others -v- the Home Office (UK Border Agency) (2017) UK SC 27, the Supreme Court considered indirect discrimination and the factors required to establish it and gave very useful guidance.
In order to be promoted within the Home Office to a higher level, staff had to pass a Core Skills Assessment test (CSA).
The Claimants, who were from Black and Minority Ethnic (BME) backgrounds and over 35 failed the CSA.
The statistics showed that BME and older employees did less well in the test, but no one could say why.
The Home Office said that the Claimants had to identify the reason, otherwise, for example BME candidates who arrived late at the test assessment or left early could also claim they had been discriminated against.
The Supreme Court cut through the knot of that, and several other arguments, and stated, what is now the “equation” for deciding whether there has been indirect discrimination.
Indirect discrimination occurs when any provision, criterion or practice of the employer (its criterion) combines with a context factor to produce a disparity of outcome between people who have a protected characteristic and those who do not.
In other words: criterion + context factor = different outcome for people with/without a protected characteristic – that is indirect discrimination.
So, in the height example above, height would be a criterion. Then you add the context factor – women are on average shorter than men – that is the context in which the criterion operates. Do both combined lead to a different outcome based on a protected characteristic (in this case sex)?
Yes – both combined means if the employer says all applicants for employment must be at least 6 feet tall, many more men than women will qualify.
The Supreme Court said you must also ask whether the same context factor causes the individual disadvantage in each case.
So, the questions for a Tribunal are: –
- Is there a PCP;
- Is there a context factor;
- Do they combine to create a group disadvantage;
- Did the same context factor cause disadvantage to the claimant?
Is the answer to all four questions is “yes” the employer is guilty of indirect discrimination and has to try and justify the use of the PCP to escape liability.
Having explained the logic the Supreme Court held in Essop as follows:
- Is there a PCP – yes it was the CSA.
- Is there a context factor – yes, the expectation that BME individuals will do less well in the CSA.
- In this case did they combine to create a disadvantage to those with a Protected Characteristic – yes to BME individuals.
- Is the same context factor a cause of the individual disadvantage – this was a matter of fact for the Tribunal. For example, if an employee turned up half an hour late to the exam, the Tribunal may decide that that was the reason they failed the CSA exam, rather than the context factor