The Supreme Court has re-established the orthodoxy in indirect discrimination, says Spencer Keen
- This judgment in Essop & Naeem will assist employment tribunals to apply the test for indirect discrimination more easily.
Indirect discrimination occurs on grounds of race where a person, A, applies to another, B, a provision, criterion or practice (PCP) in relation to a relevant characteristic of B’s. The application of the PCP will be discriminatory where A applies it to persons who do not share the characteristic and it puts (or would put) persons with whom B shares the characteristic at a particular disadvantage.
Two difficult questions have plagued recent indirect discrimination cases. First, where it is possible to prove that a particular group has been disadvantaged, but it is not possible to say why, is the fact of the disadvantage sufficient to require the employer to justify its conduct or does the claimant also need to show that the disadvantage is connected with the characteristic? Secondly, does a claimant who belongs to the disadvantaged group have to show that he suffered the same disadvantage as the group?
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