Clarity on indirect discrimination law means businesses may need to review neutral workplace practices

Equal treatment at work is currently receiving a great deal of press attention. The countdown for employers to publish their gender pay reports has begun and parliament has recently debated dress codes at work following the well-publicised story regarding the female receptionist sent home for refusing to wear high heels. At the same time, the courts are dealing with some interesting equal treatment cases. For example, we recently reported on the ECJ’s decision regarding the lawfulness of workplace bans on wearing a headscarf at work.

We report on the Supreme Court’s recent decision in the two separate cases of Essop and Naeem in which some much needed clarity was provided on the law of indirect discrimination.

Indirect discrimination

Indirect discrimination was introduced to capture employers’ seemingly neutral acts which, whilst not intended to discriminate, had the effect of doing so by putting those who share a protected characteristic, such as sex, age or race, at a disadvantage. However, even if that neutral act is found to be potentially discriminatory, it may be justified if the employer can show it is necessary to achieve a fair and reasonable aim. A common example of indirect discrimination is a blanket ban on flexible working. Whilst it is a neutral policy which applies to the whole workforce, it is likely to put female staff at a disadvantage compared to male staff as females are more likely to request flexible working due to child care commitments. Therefore, such a ban has the potential to be indirectly sex discriminatory unless the ban can be justified by the employer.

In Essop, indirect race and age discrimination claims had been brought against the Home Office concerning the requirement for all staff to pass a core skills assessment in order to be eligible for promotion. Statistical evidence showed that black and ethnic minority and older candidates had lower pass rates in the assessment compared to white and younger candidates. The Court of Appeal previously rejected the claim because it considered statistical evidence was not enough - the claimants also needed to show the reason for them achieving a lower pass mark was connected to their age/race.

In Naeem, indirect religious discrimination claims had been brought against the prison service following the introduction of an incremental pay policy which benefited those with longer service. Muslim chaplains would not be paid as well as Christian chaplains under this policy because Muslim chaplains had only been employed since 2002 whereas Christian chaplains had been employed long before then. The Court of Appeal had previously rejected the claim for a similar reason – the claimants needed to show the reason for the difference in pay was connected to their religion and hadn’t been able to do so.

On appeal, the Supreme Court decided it was not necessary for the claimants to show the reason for them being put at a disadvantage was connected to the protected characteristic they shared. It was simply enough to show the disadvantage existed because of the employer’s practice. Therefore, both practices in Essop and Naeem were held to be potentially indirectly discriminatory. However, in Naeem, it had already been decided that the employer could justify the incremental pay scale. Whether the pass rate in Essop can be justified is still to be decided.

Public awareness of potentially discriminatory practices at work is likely to rise in light of the attention these issues are receiving in the media. Of course, this is no bad thing. However, businesses may be innocently unaware of seemingly neutral workplace practices which could potentially have a discriminatory impact on employees of a certain gender, age or race etc.

Increased public awareness and the Supreme Court’s decision in Essop and Naeem may lead to more staff challenging the potentially discriminatory impact of these neutral working practices. Organisations may therefore want to carry out a review to establish whether any potentially indirectly discriminatory practices can be justified.

For any advice regarding equal treatment at work, please contact Carolyn Brown.