• Robert Spicer

Race and religious discrimination: landmark Supreme Court decision

RACE DISCRIMINATION

Indirect discrimination

Supreme Court analysis

Case Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State (2017) The Times, April 18

Facts The Supreme Court heard appeals in the cases of Essop and others and Naeem and others from the Court of Appeal. In relation to Essop, an employment tribunal had found that the claimants had to prove, in relation to an indirect discrimination claim by reason of race or age, the reason for their lower pass rates in civil service examinations.

In relation to Naeem, an employment tribunal had found that a pay system was indirectly discriminatory by reason of race and religion but it was objectively justified.

Decision 1. On a claim of indirect discrimination it is not necessary to show the reason why an employment provision put members of a particular religious or racial group at a disadvantage compared to employers who did not share that characteristic, only that that was the result. Nor did the reason, if known, have to be related to the characteristic.

2. Older and black and minority ethnic civil servants could rely on their disproportionate failure rates in a civil service promotion examination as the basis for a claim, notwithstanding that its reason was not known. What they had to show was a causal connection between a provision, criterion or practice and the disadvantage suffered.

3. An imam working as a prison chaplain could bring a claim in respect of a pay scale based on length of service as disproportionately benefiting Christian chaplains, even though it did not reflect any characteristic peculiar to him as a Muslim but resulted from the relatively recent need to employ Muslim chaplains, which gave them on average shorter lengths of service.

4. Direct discrimination was comparatively simple. It was treating one person less favourably than you would treat another person because of a particular protected characteristic.

5. Indirect discrimination was meant to avoid rules and practices which were not directed at or against people with a particular protected characteristic but which had the effect of putting them at a disadvantage. It was one form of trying to level the playing field.

RACE DISCRIMINATION

Indirect discrimination

Supreme Court analysis

Case Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State (2017) The Times, April 18

Facts The Supreme Court heard appeals in the cases of Essop and others and Naeem and others from the Court of Appeal. In relation to Essop, an employment tribunal had found that the claimants had to prove, in relation to an indirect discrimination claim by reason of race or age, the reason for their lower pass rates in civil service examinations.

In relation to Naeem, an employment tribunal had found that a pay system was indirectly discriminatory by reason of race and religion but it was objectively justified.

Decision 1. On a claim of indirect discrimination it is not necessary to show the reason why an employment provision put members of a particular religious or racial group at a disadvantage compared to employers who did not share that characteristic, only that that was the result. Nor did the reason, if known, have to be related to the characteristic.

2. Older and black and minority ethnic civil servants could rely on their disproportionate failure rates in a civil service promotion examination as the basis for a claim, notwithstanding that its reason was not known. What they had to show was a causal connection between a provision, criterion or practice and the disadvantage suffered.

3. An imam working as a prison chaplain could bring a claim in respect of a pay scale based on length of service as disproportionately benefiting Christian chaplains, even though it did not reflect any characteristic peculiar to him as a Muslim but resulted from the relatively recent need to employ Muslim chaplains, which gave them on average shorter lengths of service.

4. Direct discrimination was comparatively simple. It was treating one person less favourably than you would treat another person because of a particular protected characteristic.

5. Indirect discrimination was meant to avoid rules and practices which were not directed at or against people with a particular protected characteristic but which had the effect of putting them at a disadvantage. It was one form of trying to level the playing field.



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