Indirect discrimination: two Supreme Court rulings

The UK Supreme Court has delivered two landmark judgments on indirect discrimination. In Essop v Home Office (UK Border Agency), and Naeem v Secretary of State for Justice, the claimants maintained they had suffered unlawful indirect discrimination. Both claims depended on whether the respondents had applied unlawful provisions, criteria or practices (PCP), which had disadvantaged the claimants.

In Essop, the PCP was the requirement to pass a skills assessment to achieve promotion to higher executive officer or above. Statistics showed that black and minority ethnic (BME) candidates over 35 were less likely than non-BME and younger candidates to pass the assessment, but did not explain why this was so. Essop and several linked BME claimants over 35 failed the test. They raised indirect age and race discrimination. They could not show why they were disadvantaged.

The Supreme Court held that claimants need not prove why a PCP disadvantaged them. It was sufficient to show a causal connection between the PCP and the disadvantage.

Naeem was a salaried Muslim prison chaplain. Before 2002 only Christian prison chaplains were salaried. Other chaplains were engaged on a sessional basis, reflecting the prison population. In 2004 Naeem commenced Prison Service employment on the lowest point of the pay scale. He received increases based on length of service and performance appraisal. Naeem argued that Muslim chaplains were disadvantaged by the length of service criterion.

Dismissing his claim, the court held that Muslim chaplains were indirectly discriminated against by the pay progression process but that the Prison Service could objectively justify the pay scale.

Essop v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27