UK: Indirect discrimination - Supreme Court ruling makes it easier for claimants to establish prima facie indirect discrimination

Employers should review whether their policies and practices could be disadvantaging employees with a particular protected characteristic. The Supreme Court has ruled that statistics showing a disparate impact may be enough to get an indirect discrimination claim off the ground; there is no need to establish why that particular group is disadvantaged by the policy, that the claimant suffers disadvantage for the same reason, or that all of the group are disadvantaged in the same way. It is enough for the claimant to produce statistics showing that the group is disadvantaged and that the claimant is a member of that group and also suffered the disadvantage. It will then be for the employer to show that it was something other than the policy that caused the claimant's situation, or to justify the policy.

Employers need to identify and review risk areas; recruitment and promotion processes may merit particular attention. If there is disparate impact, employers should check that their policy has a legitimate aim and consider whether any changes can be made to remove the impact while still achieving that aim.

In Essop v Home Office (UK Border Agency), statistics showed that BME and older candidates had a significantly higher chance of failing a skills assessment required for promotion, although no-one established why this was the case. The statistics were sufficient for an individual within the disadvantaged group to establish prima facie indirect discrimination. There was no need to establish why that group had a lower pass rate; it was enough that both the group and the claimant suffered the disadvantage of being more likely to fail the test or failing the test.

It was then for the employer to establish justification, or to show that the disadvantage suffered by the particular claimant was for a different reason to the group and not because of the policy. This might be the case where the individual failed the test because they did not prepare for it diligently (of course, this may be difficult for the employer to prove even if true) or where they didn’t attend for the full test.

The Supreme Court's ruling in the joined case of Naeem v Secretary of State for Justice reinforces the fact that statistics correlating disadvantage with a protected group are sufficient to shift the burden to the employer to justify its policy. In that case a service-related pay scale disadvantaged Muslim prison chaplains as there had been insufficient demand for Muslim chaplains before 2002 and therefore they had only been recruited on a seasonal basis rather than in permanent posts prior to that year. The Supreme Court confirmed that there is no need for the reason why the policy puts a group at a disadvantage to itself be related to the protected characteristic. However, there was no reason to disturb the tribunal's finding that the pay scale was objectively justified on the particular facts.