Indirect discrimination

Question 1

Elements of indirect discrimination

Answer 1

“1. PCP

2. Adverse impact - put C at disadvantage
3. Justification - not proportionate means of legit aim”

Question 2

Do you need a PCP for indirect discrimination?

Answer 2

Onu v Akwiwu and Taiwo v Olaigbe [2016] IRLR 719 SC
Nigerian workers w insecure migration status
Indirect discrimination on grounds of race? Not race, just immigration status. “

Question 3

Is an adverse impact required for indirect discrimination?

Answer 3

”- Equality Act 2010, s.19(2) requires a ‘particular disadvantage’
- Homer [2012] UKSC 15
structural disadvantage bc of age (need law degree) -> did suffer disadvantage.

• Essop and others v Home Office [2017] UKSC 27 (Core Skills Assessment)
• Naeem v Secretary of State for Justice [2017] UKSC 27 (length of service criterion)
  Hale: Naeem justified, Essop not justified. Don’t need to know reasons why for PCP, just need causal link. (PCP Less favourable treatment). Don’t need every person in group to be at disadvantage.

Hale - 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.”

Question 4

Is a justification required for indirect discrimination?

Answer 4

“Chief Constable v Homer [2012] (CA)

• [Bilka] requirement of ‘read need’ still vital. = needs to be greater than simply permitted by law/understandable motive
• Critic: proportionality ≠ necessity

Bilka test: 1) real need to achieve aim 2) measure it employs is necessary (least discriminatory way possible)

Less rigorous approach if the case involves a challenge to the compatibility of national legislation with EU law?
- Seymour-Smith and Perez C-167/97: legitimate social aim sufficient”