PCP application

Claimants in indirect discrimination claims have to prove that their employer applied a PCP which put them (or anyone with the same characteristic) at a particular disadvantage. In the conjoined cases of Essop and ors v Home Office (UK Border Agency); Naeem v SofS for Justice, the Supreme Court held that it is not necessary for a claimant to show the reason for the disadvantage suffered in an indirect discrimination claim.

PCS, the claimants’ union in the case of Essop, instructed Thompsons to act on their behalf.

Relevant law

Section 19 of the Equality Act states that there is indirect discrimination if an employer applies a provision, criterion or practice (PCP) to someone with a relevant protected characteristic which is such that it puts them and anyone who shares that particular characteristic at a disadvantage when compared with persons who do not share it, and which the employer cannot show is a proportionate means of achieving a legitimate aim.

Basic facts and decisions of lower courts, Essop

In order to become eligible for promotion, the Home Office required all staff to pass a generic test known as the Core Skills Assessment (CSA). Based on two reports carried out in 2010 and 2011 which found that black and minority ethnic (BME) candidates and candidates over the age of 35 had a proportionately lower CSA pass rate than white and younger candidates, a number of civil servants lodged test claims for indirect discrimination on the grounds of race and age contrary to section 19.

Although the tribunal agreed that BME and older candidates faced a particular disadvantage as a result of the PCP imposed by the employer, the judge said that each civil servant also had to prove the ‘reason why’ they individually failed the test in order to show that they had actually suffered from that particular disadvantage. The EAT overturned that decision but the Court of Appeal subsequently upheld the decision of the tribunal judge.

Basic facts and decisions of lower courts, Naeem

Mr Naeem started work for the prison service as a Muslim chaplain on a sessional basis in 2001. In 2004, he became a salaried employee at the bottom of a very long pay band which allowed for pay progression over time. Mr Naeem argued that the incremental pay scheme was indirectly discriminatory against Muslim or Asian chaplains as they were only ever engaged on a sessional basis prior to 2002. The Home Office argued that as the average length of service of Christian chaplains was longer, it was inevitable that more of them would be at the top of their pay band, resulting in higher average basic pay.

The tribunal held that although the prison service had indirectly discriminated against Mr Naeem, the claim failed because it was justified. The EAT disagreed with the tribunal’s reasoning but dismissed Mr Naeem’s appeal on the basis that there was no indirect discrimination. The Court of Appeal held that it was not enough to show that the length of service criterion had a disparate impact upon Muslim chaplains: it was also necessary to show that the reason for that disparate impact was something peculiar to the protected characteristic of race or religion.

Decision of Supreme Court, Essop

Allowing the appeal, the Supreme Court held that:

• there is no need to explain why a particular PCP puts one group at a disadvantage when compared with others. It is enough that it does
• indirect discrimination, unlike direct discrimination, does not require a causal link between the characteristic and the treatment but does require a causal link between the PCP and the particular disadvantage suffered
• the reason for the disadvantage may not be in itself unlawful, or within the control of the employer, but both the PCP and the reason for the disadvantage must be ‘but for’ causes of the disadvantage
• the PCP need not put every member of the protected group sharing the protected characteristic at a disadvantage
• it is commonplace, and permissible for the disparate impact or ‘particular disadvantage’ to be established on statistical evidence alone
• it is always open to the employer to show the PCP was justified.

Decision of Supreme Court, Naeem

Noting that Muslim chaplains were disadvantaged because they had shorter lengths of service on average than Christian chaplains, the Supreme Court held that the Court of Appeal was wrong to require the reason to relate to the protected characteristic and noted that the correct pool of comparators was made up of all workers affected by the PCP, thereby putting the Muslim chaplains at a disadvantage compared with Christian chaplains. However, as it was accepted that the pay scale had a legitimate aim and was proportionate and as such was justified, Mr Naeem’s appeal was dismissed.