No express requirement of explanation for indirect discrimination


Re: Home Office v Essop & Ors; Naeem v Secretary of State for Justice [2017] UKSC 27

These appeals considered whether, in order to successfully bring a claim for indirect discrimination under the Equality Act 2010, a claimant needs to show the reason why a provision, criterion or practice (PCP) puts or would put (a) the claimant; and (b) persons with whom the claimant shares a protected characteristic, at a particular disadvantage. They also considered whether it is necessary to show that a protected characteristic was the ‘material cause’ of a difference in treatment, in order for a claimant to demonstrate that a policy is indirectly discriminatory pursuant to the Equality Act 2010, s 19(2). The Supreme Court unanimously allowed the Essop appeal and remitted the claim to be determined by the employment tribunal. It unanimously dismissed Naeem’s appeal. The Court held that the concept of indirect discrimination has never required an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others. There needs to be a causal link between the PCP and the particular disadvantage, but this does not require a causal link between the characteristic and the treatment. Similarly, the reason for the disadvantage may not be unlawful in itself, or within the employer’s control, but both the PCP and the reason for the disadvantage must be ‘but for’ causes of the disadvantage. The Court held that it was irrelevant, in the Essop case, that some older or BME candidates could pass the Core Skills Assessment in question, and it was discriminatory as the proportion who could pass was smaller than the proportion of white or younger candidates. Furthermore, the Court reiterated that it is open for a respondent to show that the PCP is objectively justified.

Karon Monaghan QC, Thomas Linden QC and Mathew Purchase were involved in this case.