NAEEM PART ONE INDIRECT DISCRIMINATION UPDATE 2017 Peter Doughty Head of Employment Team May 2017

INDIRECT DISCRMINATION Indirect discrimination occurs when a neutral practice, policy or procedure (PCP) has the affect of disadvantaging people who share a certain protected characteristic.

INDIRECT DISCRMINATION Failure to properly identify the PCP can lead to insufficient or simply the wrong evidence being led at the Employment Tribunal.  

INDIRECT DISCRMINATION 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]  

INDIRECT DISCRMINATION 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'.

INDIRECT DISCRMINATION 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.

INDIRECT DISCRMINATION 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.

INDIRECT DISCRMINATION 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

INDIRECT DISCRMINATION 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.

INDIRECT DISCRMINATION S 23(1) EqA It is necessary for there to be no material difference between the circumstances relating to each case when a comparison takes place.

INDIRECT DISCRMINATION The local councils avoid the knotty political issue of trying to justify requiring churchgoers to ‘pay to pray’

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INDIRECT DISCRMINATION Edie & 15 Ors v HCL Insurance BPO Services Ltd [2015] The employer had a legitimate aim: reducing staff costs to ensure its future viability and to have in place a market competitive, non-discriminatory set of terms and conditions. Was proportionate: 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.

INDIRECT DISCRMINATION Harrod & Ors v Chief Constable of West Midlands Police & Ors [2017] 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.

INDIRECT DISCRMINATION CHEZ v Nikolova [2015] 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 Roma (race). She was “associated” because she was also affected by the height of electricity meters in predominantly Roma areas. The policy was found not to be justified.

INDIRECT DISCRMINATION Essop v Home Office (UK Border Agency) 2013 there was a statistically significant difference between the success of BME/older candidates and younger non BME candidates sitting the CSA test; there was no particular personal factor specific to any individual Claimant that might explain this; not all older BME candidates failed.

INDIRECT DISCRMINATION Naeem v the Secretary of State for Justice 2013 There had only been Muslim chaplains since 2002 One of the pay criteria was length of service As a consequence, white or Christian chaplains better off

INDIRECT DISCRMINATION 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.

INDIRECT DISCRMINATION ESSOP section 19 of the Equality Act does not in terms require members of a disadvantaged group to show why they have suffered the disadvantage, in addition to the fact that they have done so.

INDIRECT DISCRMINATION ESSOP   “whether to construe the legislation in this way advances the broad purpose of the legislation or impedes it.” The purpose of hidden discrimination is not advanced by requiring the additional proof of actual disadvantage.

INDIRECT DISCRMINATION ESSOP Enderby was an equal pay claim and not about indirect discrimination so was Langstaff J right to use Enderby directly as a complete answer to the particular disadvantage issue?

INDIRECT DISCRMINATION ESSOP On justification & ‘Coat-tailers’: An argument that the PCP can be objectively justified is more likely to succeed as the degree of risk of disadvantage reduces.

INDIRECT DISCRMINATION ESSOP On justification & ‘Tail Coaters’: An argument that the PCP can be objectively justified is more likely to succeed as the degree of risk of disadvantage reduces.

INDIRECT DISCRMINATION ESSOP On compensation & ‘Tail Coaters’: If there is powerful material to show that a given person would succeed on the test, irrespective of its unidentified bias, then to that extent less compensation may be awarded

INDIRECT DISCRMINATION ESSOP The logic of monitoring with a view to critical evaluation of process, has been important in the improvement of equal opportunities.

INDIRECT DISCRMINATION NAEEM It is immediately apparent that the ‘pool’ in Naeem would be determinative of the issue. One pool of all chaplains would lead to a group disadvantage the other pool of chaplains employed on or after the engagement of Muslim chaplains would lead to no group disadvantage.

INDIRECT DISCRMINATION NAEEM Homer on indirect discrimination: "…is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic."

INDIRECT DISCRMINATION NAEEM Homer on Pool: The exclusion of other potential leavers led to the inevitable outcome that there was group disadvantage for those approaching retirement.

INDIRECT DISCRMINATION NAEEM on pool: The reason for there being no Muslim chaplains prior to a certain date was due to their being no requirement for them. It was about a pool which suitably tested the particular discrimination complained of. The wider pool simply did not do that.

INDIRECT DISCRMINATION NAEEM on justification: The Tribunal had failed to properly engage with the justification defence. The EAT felt that there were a number of obvious lesser measures

INDIRECT DISCRMINATION NAEEM on justification (2):   Backdated length of service. An additional increment at the start of his service, To have constrained any further pay increments for those higher up the scale.

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