Blog - 22/07/2017
Indirect discrimination made simple?
In the decision in the joined recent cases of Essop and Naeem  UKSC 27, the Supreme Court undertook this daunting task: the simplification of indirect discrimination law.
From what had become an area of law that was becoming increasingly tortuous and outcomes uncertain the decision in the above cases has produced a handful of principles which we believe purges the confusion and provides simplification of what had become complex and convoluted issues.
Direct discrimination – synopsis
Almost everyone has an intuitive understanding of direct discrimination. Direct discrimination is the less favourable treatment of an individual “because of” a protected characteristic, for example, sex, race or age. The characteristic must be the reason for the treatment. Put simply, whilst there are difficult cases, the core concept is easily understood. An employer has an express policy of refusing to employ women. In a case of that sort the discrimination is obvious. The employer treats women less favourably because of their sex.
There needs to be no context as the discriminatory impact of the criterion is apparent. The criterion is inherently discriminatory.
There is no defence where direct discrimination is established.
What makes indirect discrimination different? Introducing and the “context factor”
To establish indirect discrimination there must be a practice, criterion or provision (PCP) that:
- puts one group at a disadvantage when compared to the others; and
- when applied, puts the individual at the same disadvantage as the group.
In essence, what can appear to be a neutral PCP when applied puts a group of persons sharing a protected characteristic at a disadvantage. Take by way of examples an employer that has as a PCP for employment a minimum height requirement. Unlike the policy in the direct discrimination example above, the PCP is not inherently discriminatory. It focuses on height, not sex. If men and women were on average the same height, this apparently neutral PCP would be neutral in its application. But men and women are not the same height on average. Women are, on average, shorter. Therefore the PCP will exclude more women than men. In order for the discriminatory impact of the PCP to be apparent, one needs context. In our example, the lower average height of women is what is identified in Essop and Naeem as a “context factor”. Indirect discrimination then occurs when the employer’s PCP combines with one or more context factors to produce a disparity of outcome between people with a particular protected characteristic and those who do not have it.
Context factors can come in many different forms. The height example is a genetic difference. A length of service PCP is well understood to discrimination against women. The relevant context factor is the social expectation that women will be the principal carers for children, which leads to a greater likelihood of career interruption.
These examples highlight two important things about context factors. First, they do not need to be in the “control” of the employer. It is not the employer’s fault that women tend to be shorter, or that social expectation exists about childcare responsibilities. That is not to say that a context factor may not be within the employer’s control. What is to be looked at is when the employer’s PCP combines with a context factor, is the result an unequal playing field?
Where there is indirect discrimination there is the defence of justification if the employer can show that the application of the PCP is a proportionate means of achieving a legitimate aim. That is the employer must justify the use of the PCP.
It is important to understand that the context factor or factors is that they are always “but for” causes of the discriminatory impact. A height requirement would not be discriminatory if men and women were the same average height. A length of service PCP would not be discriminatory if men and women were equally likely to interrupt their careers to care for their children. Without the context factor, there is no discriminatory impact. The context factor is therefore always a cause. In the aforementioned cases, the Judge acknowledged this causal contribution by calling the context factor the “reason for the disadvantage”.
It is equally true, that the PCP is always a cause. Again, if there was no height requirement it does not matter if there is a difference in the average height of men and women. Similarly, if you avoid using a length of service PCP you avoid the discrimination that might otherwise occur.
Both the PCP and the context factor or factors are “but for” causes of the discriminatory impact. They both contribute to the uneven slope of the playing field.
The requirements required for indirect discrimination to arise:
- Is there a PCP?
- Is there a context factor?
- Do they combine to create a group disadvantage?
- Is the same context factor a cause of the individual disadvantage claimed?
If the answer to all four questions is yes, the, employer should be made to justify the use of the PCP, even if there are other context factors in play otherwise indirect discrimination is made out.
If the Tribunal is satisfied that some other factor entirely explains the individual disadvantage, then the answer to the fourth question is no and a claim for indirect discrimination should fail.
If you have any further questions regarding this topic or any employment issues, please contact Rachel Harrap – Partner, or any member of the Edwin Coe Employment Team.
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