Supreme Court rulings help clarify law on indirect discrimination

The Supreme Court has provided two rulings that help clarify the law on indirect discrimination in the workplace.

In the first case, the employer required staff to pass a skills assessment to be promoted. Some employees complained when they failed the assessment. They were either black and minority ethnic (BME) candidates or aged over 35.

They quoted a statistical report which found that BME and older candidates had a proportionately lower pass rate than white and younger candidates, they alleged indirect age and/or race discrimination.

They claimed that the requirement to pass the assessment was a provision, criterion or practice (PCP) which disadvantaged them. The statistical report did not explain the differential impact.

The Supreme Court allowed their appeal. It held that the definition of indirect discrimination did not expressly require an explanation of why a PCP disadvantaged a group. It was enough that it did.

The reason for the disadvantage need not be unlawful in itself or be under the employer’s control.

There was also no requirement that the PCP disadvantaged every group member. The fact that some BME or older candidates could pass the test was irrelevant. The group was disadvantaged because the proportion of those who could pass was smaller than that of white or younger candidates.

The case was sent back to the Employment Tribunal to be reconsidered.

In the second appeal, the employee was a Muslim prison chaplain. The Prison Service pay scheme related pay to length of service. Average pay for Muslim chaplains was lower than that for Christian chaplains.

Muslims had only been employed since 2002, whereas many Christians had started their employment earlier so were higher on the pay scale. The scale was transitioning so that the time taken to go from the bottom of the scale to the top would fall from 17 years to 6.

The employment tribunal held that the scheme was indirectly discriminatory but could be justified because the pay scale was a proportionate means of achieving a legitimate aim.

The Supreme Court upheld that decision.

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