Indirect discrimination – do we need to know why the PCP puts group at a disadvantage?

In the conjoined cases of Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27, the Supreme Court considered whether it is necessary for a claimant to prove the reason why a PCP puts or would put an affected group at a particular disadvantage when pursuing a claim of indirection discrimination, and whether that reason has to relate to the protected characteristic.

Without going into the facts of each case, suffice to say that Lady Hale gave the most succinct and clear judgment in both cases. She was able to distil this quite complex subject down and provide a very concise and easy to understand conclusion.

Indirect discrimination occurs when an employer has a provision, criterion or practice (“PCP”) which puts individuals with a given protected characteristic at a disadvantage when compared with individuals without that protected characteristic and it does so without justification.

The question which was addressed in these two cases was whether it was necessary to know why the PCP puts certain individuals at a disadvantage when compared with others who do not have the protected characteristic. The simple answer is that it isn’t. Clearly the “context factors” assist when deciding whether there is a disadvantaged group but they are not necessary. It is necessary only to decide whether “but for” the PCP or the “context factors” if they are known (e.g. whether they are genetic or social or traditional for example) the two groups would be on a level playing field. So, for example, but for the fact that women in our current society tend to care for children more than men do, would women and men be equally likely to be able to work full-time? The PCP is the requirement to work full-time and the “context factor” is the statistical fact that more women than men have primary child/elderly caring responsibilities. However, even if we don’t know the context factor, if statistics show that women as a group are less likely than men to be able to fulfil a PCP, then (in the absence of objective justification), a woman who is herself unable to fulfil the PCP will be able to succeed in a claim of indirect discrimination.

This will be the case in all claims of indirect discrimination. Provided there is a PCP where it can be established that a group of people with certain protected characteristics are at a disadvantage, the reasons for that disadvantage do not need to be established.

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