DIRECT AND INDIRECT DISCRIMINATION: AN OVERVIEW

DIRECT AND INDIRECT DISCRIMINATION GHAZAN MAHMOOD

JUNE 2020 | St John’s Buildings 1

DIRECT AND INDIRECT DISCRIMINATION:

AN OVERVIEW

GHAZAN MAHMOOD

ST JOHN’S BUILDINGS



INTRODUCTION

1. Over the last four decades, discrimination legislation has played an important role in helping to make Britain a more equal society. However, the legislation was complex and, despite the progress that has been made progress on some issues has been stubbornly slow.

2. The Equality Act 2010 was introduced with a view to providing a new legislative framework to protect the rights of individuals and advance equality; to update, apparently simplify and strengthen the previous legislation; and to deliver a simple, modern and accessible framework of discrimination law.

3. The provisions in the Equality Act came into force at different times to allow time for the people and organisations affected by the new laws to prepare for them. Approximately 90% of the new Act came into force on 1st October 2010.

4. However, given the considerable overlap between the new legislation (EqA 2010) and the old (eg RRA 1976), many of the old cases remain of importance. Indeed, there remains a considerable overlap in terms of the protection afforded under the provisions.

5. This talk will focus on two topics:

a. Direct race discrimination. This talk will explore the following areas: i. scope of protection.

ii. Proving or disproving discrimination. iii. Burden of Proof iv. Evidence of poor treatment. v. the value of secondary evidence to enable the drawing of appropriate

inferences. vi. comparators.

b. Indirect race discrimination. This talk will focus on the following areas;

i. the PCP ii. the appropriate pool for comparison purposes.

iii. the defence of justification.



DIRECT DISCRIMINATION

6. Section s. 13 of the EqA 2010 provides that

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

Scope of Protection

7. Under the old definition direct discrimination occurred where one was treated less favourably “on the grounds” of a protected characteristic. Under the EqA direct discrimination occurs where one is treated less favourably “because of” of a protected characteristic. The effect and therefore the scope of the protection afforded under the EqA is wider. For instance, the EqA 2010 prohibits discrimination by association or perception.

a. Associative discrimination is a type of direct discrimination and, as its name implies, occurs when someone suffers discrimination owing to their association with someone with a ‘protected characteristic’. Example: If an employer discriminates against a white employee because they are married to a black person.

b. Perceptive discrimination: this kind of discrimination encompasses discrimination because of a person’s perceived (rather than actual) characteristic. Example: If an employer discriminates against an employee on the mistaken assumption that the employee is from India, when the employee is actually from Sri Lanka.

8. That said, the concept of discrimination based on association and perception is not in itself a new concept and existed (to some degree), prior to the introduction of the EqA. Most notably, the case of Coleman v Attridge Law and another [2008] extended the old legislation to cover associative disability discrimination. In the case of Coleman, the claimant, who was the primary carer for her disabled son, claimed that she had been treated less favourably on account of her son's disability and therefore discriminated against on the basis of disability. Crucially, the claimant herself was not disabled. Following a reference to the European Court of Justice, the tribunal held that it was not necessary for an employee to be disabled to bring a claim for direct disability discrimination under the Disability Discrimination Act 1995, if he or she is discriminated against because of an association with a disabled person. The Employment Appeal Tribunal upheld this decision.

9. Following the decision in Coleman the Government decided to extend the prohibition against associative and perceptive direct discrimination and harassment to other



strands and areas where this might not, then, apply. Therefore, under the Equality Act, direct discrimination claims based on association or perception are now allowed in respect of all protected characteristics, except for marriage and civil partnership or pregnancy and maternity. The effect is that an individual is now able to bring a claim for direct discrimination not on the grounds of their protected characteristic but simply because of a protected characteristic.

Proving or Disproving Direct Discrimination.

10. It has always been the case that proving direct discrimination is notoriously difficult and most complaints of direct discrimination simply fail. This is unsurprising given that witnesses rarely admit to discrimination, particularly direct discrimination which is necessarily predicated on treating someone adversely because of a protected characteristic.

11. In simple terms, to succeed in a complaint of direct discrimination a Claimant will need to establish less favourable treatment because of a protected characteristic. But how does one go about this task when faced with witnesses who are unwilling to admit to such conduct, and documents which purport to justify the alleged adverse treatment based on non-discriminatory factors? In order to address this question, it is necessary to understand

a) the burden of proof provisions; b) the limited value of simply adducing evidence of poor treatment. c) the value of adverse inferences. d) the benefits of identifying an appropriate comparator;

Burden of Proof

12. The provision dealing with the reverse burden of proof is set out at s.136. EqA 2010;

"(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold

that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did

not contravene the provisions."

13.In Hewage v Grampion Health Board (2012) ICR 1054 the SC confirmed that the approach to interpreting the burden of proof provision remains that set out by the Court of Appeal in Igen v Wong. This provides that



(1) .....It is for the claimant who complains of .....discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of the Act..... These are referred to below as “such facts”.

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of .... discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases, the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5) It is important to note the word “could” in section...... At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the 1975 Act. [However, please keep in mind the although the statutory questionnaire procedure has been abolished an adverse inference can still be drawn from an incorrect or evasive approach in documents other than questionnaires (see Dattani v Chief Constable of West Mercia [2005] IRLR 327 and Meister v Speech Design Carrier Systems GmbH [2012] EqLR 602 at 47).

(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts....... This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of ......., then the burden of proof moves to the employer.



(10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex/race, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

14. The recent case of Ajayi Ayodele v Citylink Limited and Paul Napier (2017) EWCA Civ

1913 has reaffirmed the principles set out in Madarassay (see below); see para.90- 106,

“....The language of section 136 makes it clear that, if the inference of discrimination could be drawn at the first stage of the enquiry, then it must be drawn by the court or tribunal. The consequence will be that the claim will necessarily succeed unless the respondent discharges the burden of proof, which Mr. Dennis accepts does lie on it at the second stage. I can see no reason in fairness why a respondent should have to discharge that burden of proof unless and until the claimant has shown that there is a prima facie case of discrimination which needs to be answered. It seems to me that there is nothing unfair about requiring that a claimant should bear the burden of proof at the first stage. If he or she can discharge that burden (which is one only of showing that there is a prima facie case that the reason for the respondent's act was a discriminatory one) then the claim will succeed unless the respondent can discharge the burden placed on it at the second stage.” (para.90)

In any event, it seems to me that the difference of wording between section 136 and its predecessor provisions should be regarded, in context, as no more than a legislative "tidying up" exercise. It was not intended to change the law in substance and certainly not in the fundamental way held by Elisabeth Laing J in Efobi, of no longer imposing a burden on a claimant at the first stage of the enquiry. (para.105)

Accordingly, I have come to the conclusion that previous decisions of this Court such as Igen, as approved by the Supreme Court in Hewage, remain good law and should continue



to be followed by courts and tribunals. The interpretation placed on section 136 by the EAT in Efobi is wrong and should not be followed. (para.106)

15. In short, if a prima facie has been made out and the explanation for that treatment is

unsatisfactory then a finding of discrimination must be made. This has been interpreted as a

2-stage process.

a. at the first stage the Claimant must establish on a balance of probabilities a prima facie case of discrimination (ie less favourable treatment because of a protected characteristic).

b. If the Claimant establishes a prima facie case the burden of proof then shifts to the Respondent. At this stage the Respondent must prove that there was no discrimination whatsoever, ie that there was no conscious or sub-conscious discriminatory intent underlying the act in issue.

16. Although the statutory provision provides for a 2-stage approach, in reality ETs usually approach the complaint as a single composite issue given that the evidence before a Tribunal will always conflate the issues into one single issue: why was the employee treated in the manner alleged? For this reason, Tribunals are encouraged to make appropriate findings of facts rather than approach the evidence in a straight-jacketed technical manner. (see Hewage v Grampion Health Board (2012) ICR 1054). In Igen the Court held that tribunals will generally wish to hear all the evidence, including the Respondent’s explanations, before deciding whether the requirements at the first stage are satisfied, and if so whether the Respondent has discharged the onus shifted to him. A similar point was made in Laing v Manchester CC [2006] ICR 1519 (at para.73). In Madrassay v Nomuro v (2007) ICR 879 Mummery LJ held that the words “could conclude” meant that a “reasonable tribunal could properly conclude from all the evidence before it. This will involve evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reasons for the differential treatment....It would also include evidence adduced by the Respondent....”

Establishing a Prima Facie Case

17. So how does one establish (or challenge the claimant’s efforts to establish) a prima face case?

Evidence of Poor Treatment by an Unreasonable Employer.

18. Having regard to the Court of Appeal’s decision in Madrassay v Nomuro v (2007) ICR 879 it is clear that a claim of direct discrimination will not succeed merely because (a) a person has been treated poorly/differently and (b) there happens to be a difference between his



protected characteristic and the characteristic of another. That is insufficient to cause the burden of proof to shift. In cases of direct discrimination it is necessary to go one stage further and adduce evidence, (whether actual or circumstantial), from which a Tribunal could conclude, absent an explanation from the Respondent that the protected characteristic was the cause of the less favourable treatment in issue. Hence in claims of direct discrimination it is necessary for a Claimant to show

a) that he/she has suffered less favourable treatment, and

b) that there is a difference in the particular protected characteristic between him/her and the chosen comparator and

c) that he/she was treated less favourably on the grounds of that protected characteristic.

Thereafter the burden will shift to the Respondent and it will be required to demonstrate that ‘in no sense whatsoever’ was it influenced by the protected characteristic in order to defeat the claim.

19. In Madrassay Mummery LJ said

The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

20. The point was also made clearly in the case of Kamlesh Bahl v Law Society (2003)

“The inference may also be rebutted – and indeed this will, we suspect, be far more common – by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made. Even if they are not accepted, the tribunal’s own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason.”

21. See also Appiah v Governing Body Of Bishop Douglas Roman Catholic School (2007)

EWCA Civ 10, para.43 especially;

“the mere establishment in a difference in race and a difference in treatment is not enough to cause the burden to be transferred [to the Respondent]. It is for the Claimant to at least to establish facts from which it could be inferred that there has been discrimination “on racial grounds” (per Maurice Kay LJ).

22. See also Zafar. In the case of Zafar, Lord Browne-Wilkinson said (at p. 124B-C):



“the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant “less favourably” for the purposes of the Act of 1976. The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee ‘less favourably’ for the purposes of the Act of 1976.”

His Lordship then commended the words of Lord Morison in the Court of Session, [1977] SLT 281, 284:

“It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.”

23. Please remember: at the heart of the EqA is the need to promote equal treatment, not necessarily fair treatment. The two are not necessarily synonymous.

Something “More” is Needed:

24. Sedley LJ observed in Deman v Commission for Equality and Human Rights [2010] EWCA

Civ 1279 at paragraph 19,

the “more” which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.

25. There has to be a reason for the ET to believe that the Respondent’s behaviour was, to a

significant extent ‘attributable’ to the protected characteristic (see B v A (2010) IRLR 400, per

Underhill P at para.22).

26. Ultimately, establishing direct discrimination will usually depend upon the inferences that

is proper to draw having regard to all the evidence and the incidence of the burden of proof

on each issue. It is frequently observed in direct discrimination cases that the Claimant is faced

with the difficulty of discharging the burden of proof in the absence of direct evidence on the

issue of the protected characteristic. Accordingly, a Tribunal:

“must consider the direct oral and documentary evidence available......It must also consider what inferences may be drawn from all the primary facts. Those primary facts may include not only the acts which form the subject matter of



the complaint but also other acts alleged by the Applicant to constitute evidence pointing to a racial ground for the alleged discriminatory act or decision.” (see Anya v University of Oxford (2001) ICR 847, 853 B-D).

27. See also Chattopadhay v Headmaster of Holloway School (1982) ICR 132; since it is rare

for a Claimant complaining of discrimination to have evidence of overtly discriminatory words

or actions he/she has to rely on facts which if unexplained are consistent with him/her having

been less favourably treated than others on discriminatory grounds. It has been stated time

and time again that few employers would be prepared to admit such discrimination, even to

themselves. In some cases the discrimination will not be an intention but merely based on

the assumption that “he or she would not have fitted in”. (The purpose or motive of the

discriminator is irrelevant once discrimination/victimisation is shown: Seide v Gillette

Industries Limited (1980) IRLR 427).

28. A Tribunal is accordingly required to consider the possibility of sub-conscious

discrimination (see Deman Association of University Teachers (2003) EWCA Civ 329). There is

no requirement to prove that the Respondent was consciously motivated by the Claimant’s

status/race or that such protected characteristics were the “sole” grounds for the less

favourable treatment; it is enough that the Respondent’s decision was consciously or

subconsciously motivated by the Claimant’s protected characteristics.

29. As stated above, inferences may be drawn from evasive of incomplete replies to

questionnaires. See Dattani v Chief Constable of West Mercia Police (2005) IRLR 327. i.e a

Tribunal can draw adverse inferences from an unreasonable failure to answer any relevant

question, not just those posed in a formal questionnaire.

30. In cases where several complaints are made, it is an error of law to consider each act of

complaint in isolation of the total evidence. In the case of Driskel v Peninsula Business Services

Ltd (2000) IRLR 151, the EAT held as follows:

“In a complaint of sexual harassment, in hearing evidence and finding the facts a Tribunal should not make judgements as to the discriminatory significance, if any, of individual incidents. If ad hoc assessments are made there is the potential for ignoring the impact of the totality of successive incidents, individually trivial........”

31. Moreover, there is no requirement that the Respondent must have based its decisions

solely on racial grounds, providing they are a substantial reason for the actions in question

(Negarajan v London Regional Transport (1999) IRLR 572; James v Eastleigh Borough Council

(1990) 2 AC 751; Chattopadhay v Headmaster of Holloway School and Others (1982) ICR 132).



Comparator

32. At the heart of the definition of direct discrimination is a comparative exercise. The phrase

“treats or would treat others” in s.13(1) EA 2010 makes it plain that direct discrimination

encompasses differential treatment of an actual or hypothetical comparator. The nature of

the comparative exercise is expanded upon at s.23(1) EA 2010 which states that:

23 Comparison by reference to circumstances

(1) On a comparison of cases for the purposes of section 13 there must be no material difference between the circumstances relating to each case.

33. It follows, as a matter of logic, that the comparator must be the same as the claimant in

all material respects relevant to the factual background for the treatment other than in

respect of the protected characteristic. See Shamoon v Chief Constable of the Royal Ulster

Constabulary (2003) UKHL 11. See also Stockton on Tees Borough Council v Aylott (2010)

EWCA Civ 910. As Mummery LJ put it,

“The relevant circumstances and attributes of an appropriate comparator should reflect the circumstances and attributes relevant to the reason for the action or decision which is complained of.”

34. In practical terms, the comparative exercise can be a useful evidential tool in order to

assist the Employment Tribunal determine whether the employee was treated less favourably

and whether the reason for this was the individual’s protected characteristic.

35. It is very common for Claimants to pursue cases where there is a detailed factual history

which provides the background to the treatment at the centre of the direct disability

discrimination claim. The difficulty with assessing the validity of a comparator (actual or

hypothetical) is that a judgement must be made as to which circumstances pertaining to the

Claimant are relevant and which are irrelevant. The starting point to the comparative exercise

is to remember that its purpose is to assist the Employment Tribunal understand whether the

reason for the Claimant’s adverse treatment is a protected characteristic.

“The whole purpose of the comparison is as an aid to seeing whether or not the way in which the comparator was, or would have been, treated in the relevant circumstances supports the Claimant’s allegation that he was subjected to less favourable treatment on the ground of the protected characteristic.” (per



Rimer LJ in Lockwood v Department of Work and Pensions and Cabinet Officer (2013) EWCA Civ 1195 at para.34

36. It follows that the comparator must be the same as the Claimant in all material respects

relevant to the factual background for the treatment other than in respect of the protected

characteristic. The question of whether a comparator is appropriate is one of “fact and

degree” (Hewage) and the circumstances of the individual and the comparator need not be

identical.

37. That said, it is not always necessary to construct a hypothetical comparator. In Shamoon

v Chief Constable of the RUC [2003] ICR 377 the HoL made the point that in some cases it

might be more appropriate to simply ask: did the Claimant because of the protected

characteristic receive less favourable treatment in comparison to others?

38. Unsurprisingly therefore, there is an increasing tendency for Tribunals to explore the

reasons for the alleged treatment rather than grapple with the particular nuances of a suitable

hypothetical comparator. This reflects the belief that a comparator is not always necessary

nor helpful to the enquiry in issue. This is unsurprising given that the ultimate question to be

addressed in the case of unfavourable treatment said to be discriminatory is to ask “why the

treatment was as it was”. This is the “reason why question”. It may be that an answer cannot

be given directly to that question in which case a Tribunal might conclude that the

Respondent has failed to discharge its reverse burden. Where, however, the reason for the

treatment is established, on balance of probability, to the satisfaction of the Tribunal it

becomes unnecessary to ask for a real or a hypothetical comparator. A comparator may not

be required where there is evidence which points to direct discrimination even without the

benefit of the comparative exercise, for example, discriminatory comments. See the dicta of

Lord Scott in Shamoon v Chief Constable of the RUC [2003] ICR 377 at [116].

39. As such, it will not necessarily constitute an error of law for a Tribunal to fails to construct

a hypothetical comparator. See Elias P in Islington London Borough Council v Ladele [2009]

ICR 387 [EAT] [2] at [41]:

The logic of Lord Hoffmann’s analysis is that if the Tribunal is able to conclude that the Respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator? This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the Claimant has received less favourable treatment is often inextricably linked with the question why the Claimant was treated as he was. Accordingly: “employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.” (para 10)...The construction of the statutory



comparator has to be identified at the first stage of the Igen principles. But it may not be necessary to engage with the first stage at all.

40. Ladele has been approved by the EAT in Dr G Kalu v Brighton & Sussex University Hospitals

NHS Trust & Others UKEAT 0609/12/BA. In Kalu, the EAT held that whilst the ET may have

erred in its application of the comparator, that was not a sufficient ground of appeal where

there had been a clear finding as to the reason for the treatment (ie the approach of going

straight to the “reason why”):

41. See also D’Silva v NATFHE [2008] IRLR 412, per Underhill P:

It might reasonably have been hoped that the Frankensteinian figure of the badly-constructed hypothetical comparator would have been clumping his way rather less often into discrimination appeals since the observations of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 (see in particular paragraph 11 at p.289) and the decision of this tribunal, chaired by Elias J, in Law Society v Bahl [2003] IRLR 640, at paragraphs 103–115 (pp.652–654). We regard it as clear, taking the reasons as a whole, that the tribunal made an express finding that the only reason why the union acted in the way complained of was that (as regards the initial decision and the first review decision) the appellant had expressed a lack of trust and confidence in his legal team and (as regards the subsequent review) that Mr Bryan had genuinely overlooked the appellant’s further correspondence. Those findings necessarily exclude the possibility that the acts complained of were done, even in part, on racial grounds (or on grounds which would constitute victimisation). If that finding is unassailable it necessarily answers also the question whether he would have been treated more favourably if he had been white or if he had not previously supported Mr Deman or complained of racial discrimination. It is accordingly unnecessary to consider in detail the passages in which the tribunal referred to the nature of the hypothetical comparator. We would however say that we can see no sign that it failed to appreciate any essential feature of the necessary comparison.

Summary

42. Hence, in summary

a) evidence of direct discrimination will be rare. A tribunal must consider the possibility of unconscious discrimination. The purpose or motive of the discriminator is irrelevant;

b) An inference cannot be drawn simply because an employer has behaved badly. Unfair treatment is not per se discriminatory.

c) The Claimant must adduce evidence from which a Tribunal can infer a causal link between the less favourable treatment and the protected characteristic in issue.



d) In practical terms, the comparative exercise can be a useful evidential tool in order to assist the Employment Tribunal determine whether the employee was treated less favourably.



INDIRECT DISCRIMINATION

43. Section 19 of the EqA 2010 provides as follows:

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

44. Section.19 of the EqA focuses not on difference in treatment "on the grounds" of any

protected characteristic express or implied: instead it evaluates the disparate and adverse

discriminatory impact of the application of an apparently neutral and general provision

criterion or practice. As Lady Hale put it in Essop/Naeem (2017) IRLR 558 in the Supreme

Court, what is at issue in an indirect discrimination claim, are “rules and practices which are

not directed at or against people with a particular protected characteristic but have the effect

of putting them at a disadvantage”.

The Ingredients of Indirect Discrimination 45. In a claim of indirect discrimination

a) first the relevant PCP must be identified; b) secondly, it must be shown that the PCP placed the Claimant at a particular

disadvantage; c) Thirdly, the correct method must be deployed for identifying whether the PCP

puts people sharing the protected characteristic at a “particular disadvantage.”



d) Fourthly, (if pleaded) the Tribunal will need to consider the defence of justification.

Issue 1: Provision Criterion or Practice.

46. It is vital to frame the relevant PCP correctly.

a) The word “provision” is wide enough to cover discretionary management decisions relating specifically to the Claimant and not others (see British Airways plc v Starmer (2005) IRLR 862 – a female pilot’s application to work 50% of her usual hours was rejected but she was offered 75% instead. The EAT held that this amounted to a provision. The EAT concluded that there was no requirement for such a provision to have been applied to others in order for it to constitute a ‘provision’.

b) In relation to “practice” the EAT in Nottingham City Transport v Harvey (2013) EqLR 4

the EAT found that a flawed investigation which led to the Claimant’s dismissal was a one-off act in relation to the Claimant and could not constitute a practice. An element of repetition did not exist to render it a “practice”.

c) In Chief Constable of West Midlands Police and ors v Harrod and ors [2017] IRLR 539 (CA), Bean LJ made some obiter observations to the effect that it is not necessary to define the rule in issue as a “provision” or a “criterion” or a “practice”, so long as what is alleged can properly be said to constitute one or a combination of them.

d) Prior to the EqA 2010 the relevant phrase was “requirement or condition”. It was held that those words are to be given a broad purposive construction – see the passage from Clarke v Eley (IMI) Kynoch Ltd. There is nothing in the case law since the introduction of the EqA 2010 which implies otherwise.

47. The PCP in issue need not focus on the personal characteristics of the complainant. In the

case of Chaudhary v BMA (2007) the Respondent sought to argue that a requirement that ‘in

order to gain access to the BMA’s services, one must not allege race discrimination against

[certain] regulatory bodies’ was not a requirement or condition protected by the RRA. The

Respondent argued that the requirement or condition was in the nature of a restriction of the

range of services (none of which the BMA was obliged to provide) rather than the application

of a requirement or condition to a person. The EAT rejected this argument and noted that

e) there is no provision in the statute that necessitates the requirement or condition relating to some personal attribute of a person.

f) there is no provision in the statute that excludes from qualifying under s.1(1)(b), a condition or requirement which restricts the range of benefits, facilities or services (so long as it fulfils the other criteria in the statute).



g) The phrase “requirement or condition” is to be given a broad construction – see the passage from Clarke v Eley (IMI) Kynoch Ltd cited below;

h) in any event, the requirement that the member must not be claiming racial discrimination by the Post Graduate Dean etc. was in the nature of a personal attribute: he or she must not have been racially discriminated against by these bodies or, at least, must not complain of it.

48. Were the statute to be construed so that a PCP was restricted to the personal

characteristics of the person, then it would be permissible, and the function of the statutory

scheme would be defeated, for a society providing benefits, facilities or services to decline to

provide those which were of value exclusively or primarily to a minority racial group or gender

whereas it would be unlawful to achieve the same effect by refusing such benefit, facility or

service to members of such groups.

(ii) Particular Disadvantage

49. As to the test of ‘disparate impact’ (which previously required that the impugned

requirement was such that the proportion of the persons of the same particular (protected)

group as the complainant who could comply with it was ‘considerably smaller’ than the

proportion of persons not of the same protected group, has been replaced under the EqA

2010 with a revised test based on comparative ‘disadvantage’. The earlier test required

determination of the pool of persons to whom the condition or requirement was to be applied

(that is, those who would otherwise qualify: University of Manchester v Jones [1993] IRLR

218, 226 and 230) and then determine the proportion of persons of the complainant’s racial

group/sex who could comply (‘the advantaged group’) and conversely who could not comply

(‘the disadvantaged group’) and the proportion of persons of the comparator group who

could comply and conversely those who could not comply.

The difficulty here is that the test for indirect discrimination is a particularly technical one. In

short an applicant will need to identify

i) the relevant PCP

j) isolate and rely on the correct pool for comparison purposes. If it is defined too narrowly, the comparison (and hence the whole concept of indirect discrimination) may be too difficult to apply.



Having regard to the House of Lords decision in Rutherford (2006) UKHL 19, this is by

no means a simple exercise. If the pool is restricted this will lead to a distorted result

(see Rutherford;

The claim in Rutherford concerned section 109 Employment Rights Act 1996 (‘ERA’)

which provided that ‘section 94 [unfair dismissal right] does not apply to the dismissal

of an employee if on or before the effective date of termination he has attained .....the

age of sixty –five’ and concerned section 156 which contained materially the same

exemption in respect of redundancy pay. The Claimants asserted that that exclusionary

rule was indirectly discriminatory against men (because more men than women work

over the age of 65) and was therefore incompatible with the equal pay guarantee in

Article 141 of TEC (which covers statutory compensation in certain contexts) and should

therefore be set aside. The HL in Rutherford decided unanimously that the appeal

against the CA’s ruling that disparate impact was not shown should be dismissed.

Baroness Hale considered that the pool should be restricted to only those who wanted

the benefit of the requirement/condition, and as of necessity this excluded everybody

over the age of 65. Baroness Hale reasoned that:

‘First, the concept [of indirect discrimination] is normally applied to a rule or requirement which selects people for a particular advantage or disadvantage. Second, the rule or requirement is applied to a group of people who want something’ (para 73). ‘The advantage or disadvantage in question here is going on working over the age of 65 while still enjoying protection from unfair dismissal and redundancy that younger employees enjoy’ (para 75). ‘If that is so, it matters not that there are other men and women who have left the workforce at an earlier age and are thus uninterested in whether or not they will continue to be protected. The people who want the protection are the people who are still in the workforce at the age of 65. And the rule has no disproportionate effect upon any particular group within that group. It applies to the same proportion of women in that group as it applies to men. There is no comparison group who wants this particular benefit and can more easily obtain it.’ (para 76). ‘But the result is the same even if one defines the advantage and disadvantage without reference to the age limit. The advantage is to be able to enjoy protection against unfair dismissal and redundancy throughout one's working life. As my noble and learned friend Lord Walker of Gestingthorpe has demonstrated, the sex differential between those who can and those who cannot do this is negligible, even though there are more men in the group who cannot. But in my view one should not be bringing into the



comparison people who have no interest in the advantage in question’ (para 65).

50. Following the Supreme Court’s judgment in Essop/Naeem, the exercise has been clarified

and simplified.

51. In Essop, the Claimant was employed by the Home Office as an immigration officer. It was

common ground that there was a PCP of a requirement to pass a “Core Skills Assessment” as

a pre-requisite to promotion. Mr Essop (and other claimants) had failed that assessment. A

report showed that BME candidates and older candidates had higher failure rates, although

the reason for this was unknown. The Pool was found to be all those who might take the test.

The disadvantaged group was those that failed the test. The group was shown to be

predominantly BME candidates and older applicants. The disadvantage was the failure of the

test which was disproportionately experienced by BME candidates and older candidates.

52. In Naeem, the claimant was an imam who worked as a chaplain in the prison service.

Before 2002, imams were employed on a sessional basis, due to perceived lack of demand for

their services. Subsequently, they were employed in the same way as other chaplains. The

effect of the change however, was that Muslim chaplains tended to have shorter periods of

continuous service. Because of the application of the PCP of the pay scheme for chaplains –

which linked pay to length of service – Muslim chaplains tended to have lower rates of pay

than Christian chaplains. In Naeem the PCP of the incremental pay structure based on length

of service impacted on all chaplains, including those employed prior to 2002. The prison

service’s efforts to restrict the pool to only those employed after 2002 was thus rejected. On

the basis of a wider pool (incorporating all chaplains, pre-and post 2002) the Muslim Chaplains

were found to be at a particular disadvantage because of their inability to count any service

accrued pre-2002, which was not a problem for Christian Chaplains.

53. As regards the identification of the “group” or “pool” to which the PCP applies, Lady Hale

was clear that while there is no formula for identifying the pool, but there are guiding

principles.

a) firstly She cited with approval, Sedley LJ in Grundy v British Airways Plc [2008] IRLR 74 (CA), where he said that the pool chosen “should be that which suitably tests the particular discrimination complained of”, and in Allonby v Accrington and Rossendale College [2001] IRLR 364 (CA) where he said that the pool should not be drawn so as to include the disputed condition.



b) She also referred to the EHRC Statutory Code of Practice (2011) at para.4.18, to the effect that “all the workers affected by the PCP in question should be considered” (para.41).

c) Ultimately the issue requires the Tribunal to investigate the impact of the PCP. In order to succeed the Claimant will need to establish that the PCP placed him/her at a particular disadvantage and put or would put others who share his/her protected characteristic at a particular disadvantage in comparison to others. There is therefore a need to explore ‘group disadvantage’ although the test is not a particularly high one – see Trayhorn v Secretary of State for Justice (1.8.17,

UKEAT/0304/16/RN), the EAT (Slade J) held as follows: “Having regard to the interpretation of s.19(2)(d), in my judgment a claim may surmount the s.19(2)(b) hurdle if, adopting the language of Lord Justice Maurice Kay [in Mba], some individuals of the Claimant’s religion are disadvantaged by the relevant PCP. To this extent it may be said that the threshold of s.19(2)(b) is not a high one. ... Whether it has been surmounted is

a question of fact in each case.”

54. In terms of the evidence required to prove a “particular disadvantage”,

a) it is clear that statistical proof is not always required. (Homer v chief Constable of West Yorkshire (2012) IRLR 601), although it might be useful (Essop/Naeem para.28)

b) No particular level of threshold of seriousness is required to establish a “particular disadvantage”. (Chez Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2015] IRLR 746 (ECJ).

c) contrary to the earlier view, there is no longer a requirement for a Claimant to show why the relevant PCPC put them at a comparative disadvantage. (Essop/Naeem). (In Essop, the CoA took the view that those who had failed the test would need to show why they had failed the test and demonstrate that this was tainted by factors related to their protected characteristic). In Essop/Naeem Lady Hale rejected this reasoning – there is no need to establish that the reason for the disadvantage is tainted by a protected characteristic; it might be easier to establish discrimination if it is, but there is no requirement in law for the Claimant to prove this. However, it remains open to an employer to show the reason why a Claimant experienced difficulties which had nothing to do with their protected characteristic.

d) Following Essop/Naeem, if there is group and individual disadvantage (by reference to a protected characteristic) which the PCP is a “but for” cause of,

there will be prima facie indirect discrimination requiring justification.



(iii) Justification

55. It is well established that in defence to a claim of indirect discrimination the employer

must show that the PCP was a proportionate means of achieving a legitimate aim.

a) To be proportionate, “a measure has to be both an appropriate means of achieving a legitimate aim and (reasonably) necessary in order to do so” (per Baroness Hale in Chief Constable of West Yorkshire Police and anor v Homer [2012] ICR 704, at para.22). The discriminatory effect of the treatment has to be balanced against the employer’s reasons for it.

b) Because of the proportionality analysis inherent in the test of justification, it is necessary to determine the extent of any disparate impact before determining whether the means chosen were ‘suitable’ (Secretary of State for Defence v Elias [2006] EWCA Civ 1293). Further, where there is a close intended or factual nexus between the discriminatory provision, criterion or practice and gender/race, a particularly rigorous standard of scrutiny will be applied in determining whether the reasons advanced for it amount to legal justification (Secretary of State for Defence v Elias [2006] EWCA Civ 1293, paragraph 159-162): ‘A stringent standard of scrutiny of the claimed justification is appropriate because the discrimination, though indirect in form, is so closely related in substance to the direct form of discrimination on grounds of national origins, which can never be justified.’

GHAZAN MAHMOOD

[email protected]

Documents

DIRECT AND INDIRECT DISCRIMINATION: AN OVERVIEW