Supreme court rules it’s discrimination even if you don’t know why

Law, discrimination, tribunal

Indirect discrimination in some work-based tests

A ground-breaking court case ruled that employers will be guilty of discrimination even if they do not know why their procedures are at fault.

The case was Essop -V- Home Office, and the court looked at ‘indirect discrimination’, where an unnecessary criterion negatively affects certain groups specified in equality law compared to others. The procedure was a ‘Core Skill Assessment’ that Home Office employees had to pass before they could gain promotion.

Yet, evidence presented to the court showed that black, ethnic minority candidates, and those over 35, had a proportionately lower pass rate than white and younger candidates. Fifty-two Home Offices employees brought race and age indirect discrimination cases.

The Home Office defended itself by arguing that the employee should not use the courts to benefit from a ‘statistical fluke’. They argued that each employee had to establish why they failed before the court could judge that they had been victims of race or age discrimination. A higher court eventually ruled otherwise.

Discriminatory tests

The case went to the nation’s top court, the Supreme Court. Giving the judgment, Lady Hale said that employees did not have to explain to a court why indirect discrimination puts one group at a disadvantage. If there is a link between the criterion or practice and the disadvantage suffered, that is sufficient. So, if you are a black candidate and fail the Core Skill Assessment but can provide evidence to show more black candidates than white fail, this is enough to establish a case of indirect discrimination.

Indirect discrimination

The Equality Act 2010 says that unlawful direct discrimination is where A treats B less favourably because of B’s race, sex, religion or other ‘protected characteristic’. Then there is also indirect discrimination.

Indirect discrimination occurs when A applies to B a provision, criteria or practice which is discriminatory to B’s race, sex, religion, etc. An example would be if a police force said they would only recruit men. Whilst this policy may not be directed at a particular individual, it clearly discriminates against women in general and a woman applicant would be discriminated against.

Defence to indirect discrimination

Section 19(2) of the Equality Act 2010 provides an employer with a defence to a claim of indirect discrimination. The employer will have a defence to a claim of indirect discrimination, if he can show that the provision, criteria or practice is a proportionate means of achieving a legitimate aim. The aim must be legitimate and the means of achieving it must be proportionate. The Equality and Human Rights Commission’s Employment Code provides an example of a legitimate aim – health checks on older workers to ensure health and safety. This would be a proportionate means of achieving the legitimate aim of preserving the health and safety of older workers.

If employers or employees need advice on the Equality Act and on indirect discrimination they can contact Sharma Solicitors on 0345 430 0145.

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