The Supreme Court has given Judgment in two important Judgments on the scope of indirect discrimination concerning a BME employee and a Muslim Chaplain. It commenced its judgement by making the helpful distinction between direct discrimination and indirect discrimination:
Direct discrimination is comparatively simple: it is treating one person less favourably than you would treat another person, because of a particular protected characteristic that the former has. Indirect discrimination, however, is not so simple It is meant to avoid 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. It is one form of trying to “level the playing field”.
Essop concerned an Employee who was required to take the ‘core skills assessment’ (a test that Home Office employees had to pass in order to be eligible for promotion). An equality impact assessment had found that BME candidates and those aged 35 and over had a proportionately lower pass rate than white and younger candidates.
The Claimant was one amongst 52 who brought claims of indirect discrimination. The Claimant did so based on her race under Section 19 Equality Act 2010. The Judge considered that, in the absence of this evidence, an individual could make a claim of indirect discrimination based on statistics regardless of whether he or she was actually affected by the adverse impact suffered by the group, thus benefiting from a ‘statistical fluke’.
The EAT allowed an appeal against that decision but the Court of Appeal restored the employment judge’s approach accepting that the wording of S.19 does not expressly require members of a disadvantaged group to show why they suffered the disadvantage. However, he considered it conceptually impossible to prove a group disadvantage for the purpose of S.19(2)(b) without also showing why the claimed disadvantage is said to arise. E appealed to the Supreme Court.
In Naeem, N, an imam, worked for the Prison Service as a full-time chaplain from 2004. In 1 April 2011, the average basic pay for Muslim chaplains was £31,847, whereas Christian chaplains received £33,811. Since Muslim chaplains were only employed from 2002, they could not acquire the length of service require for pay progression. A complaint to the Employment Tribunal resulted in the ET finding for N in an indirect discrimination claim. The Employer succeeded on appeal at the EAT and Court of Appeal, with LJ Underhill holding that the question as to reason why N was at a disadvantage had to be asked. N appealed to the Supreme Court.
The Supreme Court held that there was no requirement to provide a reason why someone was put at a disadvantage by a PCP in an indirect discrimination. It was enough that in comparison to others that the individual was put at an disadvantage. Indirect discrimination does not require a causal link between the characteristic and the treatment but does require a link between the PCP and the particular disadvantage suffered. The reason for the disadvantage may not be in itself be unlawful, or within the control of the employer, but both the PCP and the reason for the disadvantage must be ‘but for’ causes of the disadvantage. The PCP need not put every member of the group sharing the protected characteristic at a disadvantage. The disadvantage suffered must be the disadvantage suffered by everyone in the group. It was always open to the Respondent to show that the PCP was justified.
Therefore E suffered the disadvantage of failing the CSA exams and this was disproportionately the disadvantage suffered by older and BME candidates. The case was remitted for a rehearing at the ET.
In N it was evident that the PCP of length of service, put Muslim Chaplains at disproportionate disadvantage. However, the ET had found that the Employer had a justification for the pay scale, taking into account that it had introduced a transitionary new pay scheme but this was halted by the Government.
The Supreme Court importantly warned Employers ‘as Langstaff J pointed out in the EAT in Essop, a wise employer will monitor how his policies and practices impact upon various groups and, if he finds that they do have a disparate impact, will try and see what can be modified to remove that impact while achieving the desired result.’
If the Claimant was a Muslim Woman, who was not permitted to wear her Hijab because of a Dress Code policy requiring her hair uncovered: –
- The Claimant would not have to provide a reason why she had been put at a disadvantage.
- The Claimant would not have to demonstrate a causal link between the fact she was Muslim and the introduction of the dress code.
- The Claimant could rely on statistical evidence to show that practicing Muslim women were placed at a disadvantage.
- The Claimant need only show that dress code resulted in disadvantage to her because she is not able to follow her belief the Muslim faith prescribes the wearing of the headscarf.
- The Claimant does not have to demonstrate that the dress code was unlawful.‘But for’ the dress code not to cover her hair ie the PCP, the Claimant would not suffer the disadvantage. Further ‘But for’ the disadvantage the Claimant would be able to practice her faith.
- The dress code not to cover the hair need not put all practicing Muslim women at a disadvantage, as some Muslim women who choose to cover their hair may decide that they can remove their hair cover in their working environment and some may believe that they need not wear the Hijab.The question is the size of the pool of the Muslim women it disadvantaged.
- The dress code would have to have the same disadvantage on everyone in the group of Hijab wearing women, in that they would be prohibited from expressing part of their faith in the workplace.
- A dress code not permitting the wearing of a head cover would disproportionately disadvantage Muslim women. The impact could be shown by the use of statistical evidence
- It is open to an Employer to try to justify the dress code. There may well be very good reasons for the PCP in question such as health and safety reasons. However an Employer should monitor how the dress code impacts on Muslim Women and try to bring in measures to remove it.
The Supreme Court judgment highlights how indirect discrimination affords protection and in light of the Supreme Court reiterating Langstaff J’s judgment at the EAT in Essop lends further support for my opnion that dress codes that attempt to create ‘religiously neutral’ environments are likely to be deemed discriminatory.
Nabila Mallick is a member of the Employment, Human Rights and International Teams.
She has a keen interest in religious discrimination issues both in the UK and Internationally.
She can be followed on LinkedIn and Twitter.