A recent case that came before the Supreme Court has elaborated on the way that the test to prove indirect discrimination should work in practice.
Indirect discrimination is the term for a situation where an employer has what is known as a ‘provision, criterion or practice’ that applies to everyone but happens to put a particular group that shares a protected characteristic at a disadvantage.
The employer can justify the indirect discrimination if it can be shown that there is a legitimate business reason for the provision, criterion or practice and that it is a proportionate measure for the reason at hand.
In most occurrences of indirect discrimination, the group, disadvantage and reasons why are clear. However, there are some instances where it isn’t possible to provide an obvious explanation – merely the existence of the disadvantage.
In the case of Essop v Home Office, the issue in question was the test that the Home Office used to determine who was eligible for promotion. This was known as the Core Skills Assessment, or CSA. All candidates seeking promotion had to undergo it.
In 2010, the Home Office commissioned a report that revealed that Black and Minority Ethnic (BME) candidates and candidates over the age of 35 had lower pass rates than white and younger candidates respectively.
The BME pass rate was 40.3% of that of the white candidates. The pass rate of candidates aged 35 or older was 37.4% of that of those below that age. No-one had been able to establish why this should be so.
Essop brought a claim for indirect race and age discrimination but the question arose – did he have to prove why the pass rates were lower or was the fact that the pass rates were lower enough for him to win his claim?
At the Employment Tribunal stage, it was ruled that Essop did have to prove the reason for the lower pass rate. He then appealed the decision and the Employment Appeal Tribunal said that he did not have to prove it. It was good enough for him to show that the group to which he belonged had suffered, or would suffer the disadvantage of a higher risk of failure.
The Home Office appealed and the Court of Appeal reversed the decision of the Employment Appeal Tribunal. The case then went to the Supreme Court where the decision was made that proof of indirect discrimination was not dependent on an explanation of why a disadvantage had arisen.
In Mr Essop’s case, the reason behind the disadvantage was immaterial; the fact that the disadvantage existed proved that indirect discrimination had taken place. The onus was then on the Home Office to show that the use of the CSA was justified, taking into account the exposed disadvantage.
The decision of the Supreme Court, inasmuch as it makes it easier for employees to lodge discrimination claims could be worrying for employers, particularly when taken together with the same court’s recent decision to declare fees for tribunal claims illegal.
However, the court’s decision also leaves the employer with the ability to prove that their provision, criterion or practice is justified.
What should employers do?
The Supreme Court said that employers would be wise to operate a monitoring system to assess the way in which policies and practices affected various groups with protected characteristics. If an effect was identified, those policies and practices should be modified to overcome that effect. The need for monitoring and modification is particularly important in areas such as
the recruitment process,
the disciplinary process.
It’s always a good idea to set out an equal opportunities policy that’s supported by monitoring and manager training.