Essop and Others v Home Office (UK Border Agency): SC 5 Apr 2017

The appellants alleged indirect race and belief discrimination in the conditions of their employment by the respondent. Essop came as lead claimant challenging the tests used for promotion. Statistics showed lower pass rates for BME candidates, but with no explanation of the connection. Naaem was an imam. He began as a part time prison chaplain, but the pension arrangements were changed so that even though working full time, he was disadvantaged. He appealed from a finding that having been unable to show a connection between the inirect discrimination suffered, and the protected characteristic, his action must fail.
Held: Over time the wording in the European directives and the UK statutes implementing them had changed, but in none of the various definitions of indirect discrimination, is there any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others.
The arguments put forward by the respondent do not justify importing words into the statute (and the Directives which lay behind it) which are simply not there and which, as the Court of Appeal recognised, could lead to the continuation of unlawful discrimination, which would be contrary to the public interest. In order to succeed in an indirect discrimination claim, it is not necessary to establish the reason for the particular disadvantage to which the group is put. The essential element is a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual. This may be easier to prove if the reason for the group disadvantage is known but that is a matter of fact, not law.
The definitions of direct and indirect discrimination also differed: ‘Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment – the PCP is applied indiscriminately to all – but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified.’
Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Hodge
[2017] UKSC 27, [2017] ICR 640, [2017] 1 WLR 1343, [2017] IRLR 558, [2017] WLR(D) 244, [2017] 3 All ER 551, UKSC 2015/0161
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Equality Act 2010 19
England and Wales
At EATNaeem v The Secretary of State for Justice EAT 15-Jan-2014
Until 2002 the only Chaplains employed by the Prison Service were Christians. Since then, Chaplains of other faiths have been . .
At EATEssop and Others v Home Office (UK Border Agency) EAT 16-May-2014
EAT Race Discrimination : Indirect – In a test case, it was assumed that BME candidates disproportionately failed the CSA test, passing which was necessary to progress to higher grades in the Civil Service. The . .
Appeal fromNaeem v The Secretary of State for Justice CA 9-Dec-2015
The claimant appealed against rejection of his claim for discrimination when under the 1952 Act, there was a requirement to appoint a member as pastor of the prison a Clergyman of the Church of England, and other chaplains, including himself, an . .
Appeal fromHome Office (UK Border Agency) v Essop and Others CA 22-Jun-2015
The appellant challenged a finding that it was guilty of indirect race discrimination. A statistical study showed that BME candidates did rather less well on a standard assessment test, but while the correlation was clear, the manner of . .
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CitedWilson v Health and Safety Executive CA 20-Oct-2009
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Held: The employer’s appeal was dismissed. Decisions based on length of service tended to discriminate against women, because . .
CitedGrundy v British Airways Plc CA 23-Oct-2007
The claimant, a cabin crew member of the defendant’s staff sought damages for sex discrimination.
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Social Policy – The court considered what went to make up age discrimination: ‘the Court acknowledged that rewarding, in particular, experience acquired which enables the worker to perform his duties better constitutes a legitimate objective of pay . .

Cited by:
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Updated: 20 February 2021; Ref: scu.581352