Essop and Others v Home Office (UK Border Agency)

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLady Hale,Lord Clarke,Lord Wilson,Lord Carnwath,Lord Hodge
Judgment Date05 Apr 2017
Neutral Citation[2017] UKSC 27

[2017] UKSC 27

THE SUPREME COURT

Hilary Term

On appeals from: [2015] EWCA Civ 609 and [2015] EWCA Civ 1264

before

Lady Hale, Deputy President

Lord Clarke

Lord Wilson

Lord Carnwath

Lord Hodge

Essop and others
(Appellants)
and
Home Office (UK Border Agency)
(Respondent)
Naeem
(Appellant)
and
Secretary of State for Justice
(Respondent)

Appellant (Essop and ors)

Karon Monaghan QC

Nicola Braganza

(Instructed by Thompsons Solicitors LLP)

Appellant (Naeem)

Sean Jones QC

Amy Rogers

(Instructed by Slater and Gordon (UK) LLP)

Respondent (Home Office)

Naomi Ellenbogen QC

John-Paul Waite

(Instructed by The Government Legal Department)

Respondent (SSJ)

Thomas Linden QC

Mathew Purchase

(Instructed by The Government Legal Department)

Heard on 14 and 15 November 2016

Lady Hale

(with whom Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hodge agree)

1

Ideally, discrimination ought to be an easy concept, although proving it may be harder. But we do not live in an ideal world and the concepts are not easy, as these two cases illustrate all too well. The law prohibits two main kinds of discrimination — direct and indirect. Direct discrimination is comparatively simple: it is treating one person less favourably than you would treat another person, because of a particular protected characteristic that the former has. Indirect discrimination, however, is not so simple. It is meant to avoid rules and practices which are not directed at or against people with a particular protected characteristic but have the effect of putting them at a disadvantage. It is one form of trying to "level the playing field".

2

The two cases before us are about indirect discrimination on grounds of race and/or age and/or religion. Indirect discrimination is defined in section 19 of the Equality Act 2010 in this way:

"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if —

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim."

Subsection (3) lists the relevant protected characteristics, which include age, race and religion or belief.

3

Mr Essop's case relies upon both age and race; Mr Naeem's case relies on both race and religion but primarily religion. Section 9 explains what is meant by race:

"(1) Race includes — (a) colour; (b) nationality; (c) ethnic or national origins.

(2) In relation to the protected characteristic of race —

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same racial group.

(3) A racial group is a group of persons defined by reference to race; and a reference to a person's racial group is a reference to a racial group into which the person falls.

(4) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group."

Section 5(1) and (2) makes provision equivalent to section 9(2) for people who belong to or share a particular age group, which may be defined either by reference to a particular age or an age range. Section 10(3) makes equivalent provision for people of, or who share, a particular religion or belief.

4

The concept of discrimination obviously involves comparisons between groups or individuals. Section 23(1) provides that:

"On a comparison of cases for the purpose of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case."

5

Having defined what is meant by discrimination, the Act goes on to define the circumstances in which it is unlawful. Relevant to these appeals is section 39(2):

"An employer (A) must not discriminate against an employee of A's (B) — (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service."

6

Finally, the Act deals with the burden of proof in civil proceedings before a court or a list of tribunals which includes an employment tribunal. Relevant to these appeals are section 136(2) and (3):

"(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provisions concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision."

The Essop case

7

Mr Essop is the lead appellant in a group of 49 people, six of whom have been chosen as test cases. They are, or were, all employed by the Home Office. Mr Essop is an immigration officer who has been employed by the Home Office since 1995. It is common ground that the relevant "provision, criterion or practice" (PCP) in this case is the requirement to pass a Core Skills Assessment ( CSA) as a prerequisite to promotion to certain civil service grades.

8

At the relevant times, the Home Office required all employees to take and pass a CSA in order to become eligible for promotion to the grades of Higher Executive Officer (HEO) original, HEO interim or Grade 7. The CSA was a generic test required for each of these grades, irrespective of the particular role. Its stated purpose was to test the core skills required to operate as a civil servant at those grades, rather than the knowledge and skills required for the particular post sought. Candidates who passed the CSA would then be required to sit and pass a Specific Skills Assessment relevant to the particular post. All the appellants have, at some time, failed the CSA and were thus not, at that time, eligible for promotion.

9

In 2010, a report commissioned by the Home Office from a firm of occupational psychologists, Pearn Kandola, revealed that Black and Minority Ethnic (BME) candidates and older candidates had lower pass rates than white and younger candidates. All non-white candidates were pooled into a single BME grouping, although a more detailed breakdown of ethnicity was available, in order to maximise the size of the group and thus the reliability of the analysis. (Whether this is an appropriate approach is not in issue before this Court but was left open by the Employment Tribunal.) The BME pass rate was 40.3% of that of the white candidates. The pass rate of candidates aged 35 or older was 37.4% of that of those below that age. In each case, there was a 0.1% likelihood that this could happen by chance. Of course, they did not all fail. No-one knows why the proportion of BME or older candidates failing is significantly higher than the proportion of white or younger candidates failing.

10

Proceedings were launched in the London South Employment Tribunal. It was agreed between the parties that a pre-hearing review was required to determine whether the claimants were required for the purposes of section 19(2)(b) and/or (c) to prove what the reason for the lower pass rate was. The Home Office argued that they did need to do so. The claimants argued that they did not. The Employment Judge held that they did have to prove the reason. The claimants appealed to the then President of the Employment Appeal Tribunal, Langstaff J, who sat alone on this occasion. He held that they did not have to prove the reason. It was enough to show that the group had suffered, or would suffer, the particular disadvantage of a greater risk of failure and that each individual had in fact suffered the disadvantage of failure: [2014] UKEAT/0480/13; [2014] ICR 871. The Home Office appealed to the Court of Appeal, which held that the claimants had to show why the requirement to pass the CSA put the group at a disadvantage and that he or she had failed the test for that same reason and gave general guidance for the Employment Tribunal handling the claims: [2015] EWCA Civ 609; [2015] ICR 1063.

11

The principal issue of law on appeal to this Court, therefore, is whether section 19(2)(b) and (c) of the 2010 Act requires that the reason for the disadvantage suffered by the group be established and that the reason why the individual has suffered from that disadvantage be the same. Also in issue are how the disadvantage is to be defined in this case and how and by whom the burden of proving the reason for it is to be discharged.

The Naeem case

12

Mr Naeem is an imam who works as a chaplain in the Prison Service. Some prison chaplains are employed on a salaried basis under contracts of employment. Some are engaged on a sessional basis as and when required and paid at an hourly rate. Both groups are required to undergo training. Before 2002, Muslim chaplains were engaged on a sessional basis only, because the Prison Service believed that there were not enough Muslim prisoners to justify employing them on a salaried basis. Mr Naeem began working as a prison chaplain at HMP Bullingdon in June 2001, at first on a sessional basis, but in October 2004 he became a salaried employee. It is common ground that the PCP in question is the Prison Service pay scheme for chaplains, which incorporates pay progression over time and thus pay is related to length of service.

13

Like many public sector employers, the Prison Service operates an incremental pay scale, with (usually) annual increments in...

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