Indirect Discrimination Flashcards
Indirect Discrimination
Idea behind ID is that there is a policy, criterion or practice (PCP) which is facially neutral, but in fact puts one group at a relative disadvantage to others.
ID shifts focus away from formal equality under English law. Collins in ‘Discrimination, Equality and Social Inclusion’ argues that where ID applies, formal equality as equal treatment becomes unlawful since the rule disproportionately affects one of the protected groups.
R v Secretary of State for Employment, ex p EOC
Govt had different employment rights for part-time workers compared to full-time workers. Appears facially neutral since this applies to all part-time workers. However, part-time workers are disproportionately women.
HL held that the law was indirectly discriminatory against women because the PCP disproportionately disadvantaged women.
s 19 Equality Act 2010
ID is prohibited under s 19 EqA. A discriminates against B if the PCP A applies to B puts persons with whom B shares the protected characteristic at a disadvantage when compared to individuals with whom B does not share it, AND A cannot show that it is a proportionate means of achieving a legitimate aim.
s 19(2) Equality Act 2010
Unlike DD, ID can be objectively justified. It must be a proportionate means of achieving a legitimate aim in order to be justified, however.
ID Requirements
3 requirements for ID:
1) Provision, criterion or practice which A applies to B.
2) PCP puts those with whom B shares a protected characteristic at a disadvantage when compared to those whom B does not share the characteristic.
3) The ID is not a proportionate means of achieving a legitimate aim (i.e. cannot be objectively justified).
Enderby
ECJ has offered a generous definition of the term ‘practice’. ECJ held that different rates of pay between NHS speech therapists (mainly female) and pharmacists (mainly male), despite the fact they are both deemed to perform work of equal value measured by skills and responsibility, constituted practice and thus was capable of being indirectly discriminatory.
Different pay rates = practice.
London Underground v Edwards
LU drivers were disproportionately male. Employer changed shift pattern meaning that E, as a single mother, was no longer able to balance her job with childcare.
CA held that even though E was the only woman showed to have actual disadvantage to the PCP (1/21), indirect discrimination could be logically inferred because no men were disadvantaged by the PCP. 95% of women were unaffected compared to 100% of men, which demonstrated that women as a group were at a particular disadvantaged compared to men.
More generous approach than Eweida - court willing to logically infer potential/actual group disadvantage from individual disadvantage since 100% of men were unaffected. Contrast this to Eweida and Essop which have focused more on the existence of a group disadvantage needing to be proven, either potential or actual.
Eweida v BA
BA policy that employees could only wear religious items under their uniform, unless it was mandatory for that religion and could not be concealed by the uniform. E wore a cross over her uniform as a personal expression of her faith.
CA and EAT both dismissed the ID claims - note that they were brought on different grounds. In the EAT, E claimed that BA’s policy was ID against ALL Christians. After the EAT rejected this, E argued in the CA that ID only required proof that she suffered actual disadvantage from the PCP and group suffered potential disadvantage.
Elias J in the EAT said that ID requires group disadvantage, and C failed to produce any evidence that other Christians were also disadvantaged by the PCP since she wore the cross as a personal choice - not mandated by Christianity.
CA likewise said that E failed to show that the group more broadly was disadvantaged as her wearing the cross was merely a personal expression of faith. Court set out three interpretations of the scope of potential disadvantage - wide, narrow and intermediate. However, E’s test failed all three - failed to show potential disadvantage so ID claim failed.
Sedley LJ in the CA disagreed with the EAT and said that ID is not about group discrimination as such, but rather about dealing with discriminatory impact of facially neutral requirements. Nevertheless, he agreed with the EAT that ID first requires an identified group to be adversely affected by the PCP, whether actually or potentially, and secondly C demonstrating that they have in fact been disadvantaged by the PCP.
Eweida v UK
E argued that domestic law failed to adequately protect her rights to manifest her religion. ECtHR held that there was a violation of her Art. 9 rights (freedom of religion). English law failed to strike appropriate balance between her right to manifest and express her religion, and her employer’s wish to project a certain corporate image (even though this was a legitimate aim). Other BA employees could wear religious symbols without negatively affecting the brand.
Home Office v Essop [2017] (SC)
BME individuals had lower pass rate for Home Office test, and it could not be explained why this was the case. BME individual therefore brought claim that the test was indirectly discriminatory.
SC held that there must be a causal connection between the PCP and the disadvantage suffered - both by the identified group, and the individual. However, for group disadvantage it is sufficient that C shows there was potential disadvantage. Actual disadvantage must be shown for C. Lady Hale said that requiring actual group disadvantage to be proven would deprive ID of much of its content.
E.g. PCP disadvantages the group potentially because statistically BME individuals are more likely to fail. And C suffered actual disadvantage due to failing the test = ID. If, however, C failed due to entirely own conduct, then there would be no causal connection between PCP and actual disadvantage.
R v Secretary of State for Employment, ex p Seymour Smith
Court accepted labour market justifications to ID on the grounds of job creation. So even though the PCP was indirectly discriminatory, it could be objectively justified as it was a proportionate means of achieving the legitimate aim of job creation.
Challenge to UD qualifying period - women less likely to meet it due to part time work etc. However, legitimate aim of labour market efficiency (qualifying period for UD claims) and not disproportionate since only 7% more women affected.
Bilka-Kaufhas
ECJ said that it is for domestic courts to decide whether ID PCP can be justified on economic grounds. Three stage test for objective justification of ID:
1) Correspond to need of undertaking;
2) Be appropriate to achieve the object pursued; and
3) Be necessary to that end.
Therefore, there must be no greater adverse impact than is necessary. In this case, ECJ accepted differential treatment of primarily female part-time workers was justified. High overheads and training costs of part time workers meant that their exclusion from the statutory pension scheme was a legitimate means of achieving the proportionate aim of reducing number of part-time workers.
