NAEEM PART ONE
What is indirect discrimination?
1. Section 19 Equality Act 2010 states 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.
(3) The relevant protected characteristics are: age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; sexual orientation.
2. Indirect discrimination occurs when a neutral practice, policy or procedure (PCP) has the affect of disadvantaging people who share a certain protected characteristic.
3. The identification of the correct PCP is essential before the Tribunal embarks on assessing the impact/affect of it. This usually takes place at a preliminary hearing prior to the full hearing. Failure to properly identify the PCP can lead to insufficient or simply the wrong evidence being led at the Employment Tribunal.
4. The burden is on the Claimant to identify the PCP and that the PCP identified has the affect alleged (Bethnal Green and Shoreditch Education Trust v Dippenaar [2015] UKEAT/0064/15 @ para 42).
5. Indirect discrimination usually occurs inadvertently but it can be intentional.
6. It is possible to justify a PCP if the employer can show that there is an 'objective justification' for it. This involves demonstrating a 'proportionate means of achieving a legitimate aim'.
7. The aim must be legitimate, and a real objective consideration such as the economic needs of running a business. But arguing that it's more expensive not to discriminate is unlikely to be considered a valid justification on its own.
8. It must also be a proportionate measure too, meaning that the discriminatory impact should be significantly outweighed by the importance and benefits of the aim. There should also be no reasonable, less discriminatory alternative.
9. The Tribunals approach can be summarised as follows:
It is for the tribunal to weigh the real needs of the undertaking against the discriminatory effects of the requirement (it is not enough that a reasonable employer might think the criterion justified).
and
to be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.
10. If the indirect discrimination is justified then it is not unlawful.
11. One further point arises under S 23(1) EqA namely that it is necessary for there to be no material difference between the circumstances relating to each case when a comparison takes place. This point became central in Naeem in the EAT.
12. I think a helpful non-employment starting point is the imposition of parking charges on Sundays. On the face of it town centre parking charges where shopping begins at 10 am would appear to be a perfectly sensible revenue raising step and in line with a policy of charging for parking whilst the shops are open.
13. However, Christians attending churches in the town centre will be disadvantaged because it is a manifestation of their belief to attend a church on Sunday. It is indirect because not everyone who pays the charge or for that matter attends church is Christian (although it may not actually matter that the individual does not have the characteristic so long as there is group disadvantage – see CHEZ v Nikolova below). Nevertheless, Christians are likely to be disproportionately disadvantaged by the charge.
14. As a result of the potential for indirect discrimination many local councils have decided not to charge for parking before Midday on a Sunday. The local councils thus avoid the knotty political issue of trying to justify requiring churchgoers to ‘pay to pray’.
15. It is not just Christians renowned Chief Druid ‘King Arthur Pendragon’ is taking English Heritage to Court this year for imposing parking charges at Stonehenge on the Solstice! English Heritage claim that it is simply a case of paying to park but this of course fails to address the impact it has on Druids who manifest their religion by attending Stonehenge on the Solstice!
16. What about a PCP that might be justified even though it has a discriminatory impact? A recent helpful example in the employment context was Edie & 15 Ors v HCL Insurance BPO Services Ltd [2015] UKEAT/0152/14.
17. In this case, the employer was facing financial difficulties and required employees to agree new terms and conditions or be dismissed. This put older employees at a disadvantage because they were most likely to be impacted by having to sign the new contract and lose valuable pay and conditions. The older employees pursued claims for indirect age discrimination.
18. The tribunal found that the requirement to enter a new contract was a provision, criterion or practice ("PCP") but also held that the PCP was objectively justified.
19. In this case, the PCP was identified and the group disadvantaged was clear. The individuals were also clearly members of the disadvantaged group.
20. The employer had a legitimate aim, namely reducing staff costs to ensure its future viability and to have in place a market competitive, non-discriminatory set of terms and conditions. These were proportionate as the employees’ alternatives would not achieve the employer's legitimate aim and so the PCP was objectively justified as there were no practicable alternative to the changes proposed by the employer.
21. This decision comes very close to a cost only argument but is saved by the reason for the changes being couched in terms of future viability and a non-discriminatory set of terms & conditions.
22. For a recent case on justification have a look at Harrod & Ors v Chief Constable of West Midlands Police & Ors [2017] EWCA Civ 191.
23. This case concerned the compulsory retirement of police officers as a result of the application of Regulation A19 of the Police Pensions Regulations 1987. The trigger for enforced retirement was that he or she had served for 30 years, and thus qualified for a pension of two thirds average pensionable pay.
24. Pensionable service begins at the age of 18 which meant that Officers as young as 48 were thus required to retire up to 17 years prior to their normal compulsory retirement age. All the Claimants were required to retire by the Chief Constable of his or her Force "in the general interests of efficiency" pursuant to Regulation A19 (2) of the 1987 regulations which said:
‘If a Police Authority determine that the retention in the force of a regular policeman to whom this Regulation applies would not be in the general interests of efficiency, he may be required to retire on such date as the police authority determine’.
25. The original tribunal found that the application of A 19 was a PCP and was not justified. This decision was reversed by the EAT and the subsequent appeal was dismissed.
26. Although this case is about justification, in passing Bean LJ made it clear that it was generally unhelpful to try and pigeon hole a PCP as a provision, criteria or practice. He endorsed Langstaff J’s observation in the EAT:
“I think it is in general unhelpful to analysis section 19 of the Equality Act 2010 as if it were critical whether that which provides discrimination is a “provision” on one hand, a “criterion” on the other or a “practice” on the next: the question for the Tribunal is whether apparent discrimination results from something which might properly be described by any or all of those labels and if so whether it can be justified.”
27. On the question of justification, the CA felt there was only one answer. This arose out of the legitimate aim that had been identified namely a reduction in headcount. Bean LJ pointed out that whilst the Respondents could have managed with fewer compulsory retirements than they did this answered the wrong question. The Respondents had to justify the selection, which they did by reliance on A19. They did not have to justify the numbers. As A19 was the only lawful way to do this it required no further evidence to support its use.
28. Underhill LJ explained the situation with clarity at paragraph 38 of the Judgment:
“It is the choice of that method that has to be justified. The question is whether it was a proportionate means of achieving a legitimate aim. In my view the right way to characterise the forces’ aim is that they wished to achieve the maximum practicable reduction in the numbers of their officers. That is unquestionably a legitimate aim. The essential, and unusual, feature of the present case is that, because of the absence of any general power to dismiss serving officers, the use of the power under regulation A19 was the only way in which that aim could be achieved: there is no other legal way to reduce numbers on a mass basis. In those circumstances, it is hard to see how its use could be said to be disproportionate, notwithstanding that it involved the application of an age-discriminatory criterion.”
29. Must the person be a member of the disadvantaged group to mount a challenge?
30. Not necessarily says the ECJ in CHEZ v Nikolova [2015] IRLR 746.
31. CHEZ is an electricity supplier. In predominantly Roma areas, electricity meters are placed 6m off the ground whereas meters are placed at 1.7m in areas which are not predominantly Roma. The reason cited for this practice was to prevent tampering with electricity meters and illegal electricity abstraction, which CHEZ claimed were especially common in ‘Roma districts’ (although no evidence was led by Chez on this point).
32. The claimant ran a business within a predominantly Roma area in the Bulgarian town of Plovdiv, although she was not Roma. She argued that the height of the electricity meters placed her at a particular disadvantage because she was not able to see the meter to get readings, causing her estimated bills to be higher than they should be. She argued that she was the victim of indirect race discrimination by association.
33. The ECJ concluded that Ms Nikolova suffered a detriment (difficulty in accessing her meter) through the imposition of a PCP (height of the meter in predominantly Roma areas) which disproportionately affected people with the protected characteristic of being Roma (race). She was “associated” with the Roma community because she was also affected by CHEZ’s policy on the height of electricity meters in predominantly Roma areas. The policy was found not to be justified.
34. It is also worth noting that the application of this particular PCP was ‘intentional’ to the extent it was put in place because of the perception that the Roma people are more likely to abstract electricity!
35. So, whilst this is another non-employment case one can well imagine a situation where an employer rejects applications from specific post code area(s) based on the racial make up of the areas. Any resident living in that area who was rejected based on their post code could make a case irrespective of their race.
Essop & Naeem
36. So far so clear so why all the fuss over Naeem? Naeem is a tale of two cases Essop v Home Office (UK Border Agency) UKEAT/0480/13 and Naeem v the Secretary of State for Justice UKEAT/0215/13.
37. Essop was a preliminary hearing with agreed facts for the purposes of the PH only. The Claimants were alleging that black and minority ethnic (BME) candidates over the age of 35 were systematically less likely than non-BME and younger candidates to pass a Core Skills Assessment ("CSA") which it was necessary to pass in order to achieve promotion to the post of HEO or above in the Civil Service.
38. At a pre-hearing review, it was assumed that: (a) there was a statistically significant difference between the success of BME/older candidates and younger non BME candidates sitting the CSA test; (b) there was no particular personal factor specific to any individual Claimant that might explain this; and (c) not all older BME candidates failed.
39. In Naeem the claimant, who was Muslim, was employed as a chaplain in 2004. Until 2002 the only chaplains employed by the Prison Service were Christian chaplains. It followed that there had only been Muslim chaplains since 2002. One of the pay criteria was length of service and this emphasis given to progression within the claimant's pay band on the basis of length of service meant, as a consequence, that white or Christian chaplains were to be found more strongly represented in the upper echelons of this pay band than Asian or Muslim chaplains.
40. So, in each case a neutral criteria either the CSA or length of service appeared to have a disproportionate impact on a group of individuals with a particular protected characteristic.