Employment Lawyers Association Conference 2016 ......Employment Lawyers Association Conference 2016...

Employment Lawyers Association Conference 2016

Developing Indirect

Discrimination

Rachel Crasnow QC

[email protected]

020 827 40001

mailto:[email protected]

Indirect

discrimination

2015: in cases of Essop and Naeem CA

makes indirect discrimination cases

harder for employees

Issue of what is the disadvantage arises in

cases where reason for disparate impact

not clear cut

CA suggests necessary to show cause of

disadvantage

2

Section 19(2) EqA 2010

Indirect discrimination

“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.”3

Essop & indirect

discrimination

Home Office (UK Border Agency) vEssop [2015] I.C.R. 1063

Core Skills Assessment: civil servants

must pass for promotion eligibility

CSA had disparate impact on BME staff

and those over 35.

Significant that not every BME candidate

failed test4

Essop & indirect

discrimination

CA judgment for HOnecessary in s19 claim for C to show why

the PCP disadvantaged the group sharing

the protected characteristic;

Cs had to prove nature of group

disadvantage and each C also had to

prove that had suffered same

disadvantage;

5

Essop & indirect

discrimination

CA reasoning

EAT wrong as would mean Cs would have

automatic ride to victory, subject to OJ

Causation necessary or “coat-tailers”

would win on non-principled basis

s19(2)(c) meant C had to prove personally

suffered that disadvantage; must be same

disadvantage to which group was subject.

Disadvantage could not be failing the test 6

Essop & indirect

discrimination

Reflections on Essop in CA-

How significant is coat-tailer

issue?

Defining disadvantage

Higher threshold where reason

for disparity not obvious?

7

Naeem & indirect

discriminationNaeem v Secretary of State for Justice

[2015] EWCA Civ 1264

H.M. Prison Service's pay scale based in part on

length of service (LoS)

Muslim chaplains only permanently employed

from 2002

By time of N’s claim some Christian chaplains to

top of pay scale but no Muslim chaplains.

• Average basic pay of Muslim chaplains materially

less than Christian chaplains.

• 8

Naeem & indirect

discrimination

CA judgmentPools: N correct to argue PCP when

applied to actual population upon which

impacted & this caused particular

disadvantage to Muslims

But permissible/necessary to go behind

fact of different LoS & establish why that

was case. Reason = no need to employ

Muslims pre 20029

Naeem & indirect

discrimination

CA judgment (Underhill LJ)

“the concept of “putting” persons at a disadvantage is causal, and as in any legal analysis of causation, it is necessary to distinguish the legally relevant cause or causes from other factors in the situation.”

useful analogy with equal pay cases

No particular disadvantage under

s19(2)(b) as no discriminatory practice10

Naeem & indirect

discrimination

Comment on CA judgment:

1. Isn’t choice of LoS in pay scale as

determinative of disadvantage as fact of

2002 start date?

2. Conceptually possible to identify group.

disadvantage w/out identifying reason for it?

3. Assistance from CJEU caselaw eg Coleman

Opinion [2008] IRLR 1128 at 1135 D-F

11

Naeem & indirect

discrimination

AG Maduro in Coleman v Attridge Law:

“In indirect discrimination cases the intentions of

the employer and the reasons he has to act or

not to act are irrelevant. In fact, this is the whole

point of the prohibition of indirect discrimination:

even neutral, innocent or good faith measures

and policies adopted with no discriminatory

intent whatsoever will be caught if their impact

on persons who have a particular characteristic

is greater than their impact on other persons”12

© S

late

r and G

ord

on L

imited 2

014

13

Project titleDate Month 2014

Employment Lawyers Association

Conference 2016

Developing indirect discrimination

Emma Hawksworth, Slater and

Gordon

© S

late

r and G

ord

on L

imited 2

014

14

Expanding the scope

• C-83/14 CHEZ Razpredelenie Bulgaria AD v

Komisia za zashtita ot diskriminatsias [2015]

IRLR 746

CHEZ

V KZD

© S

late

r and G

ord

on L

imited 2

014

16

CHEZ: KZD’s decisions

• indirect discrimination on grounds of nationality (2010) – overturned by the national court

• direct discrimination on grounds of personal situation, namely the location of the business within Gidova district (2012)

© S

late

r and G

ord

on L

imited 2

014

17

CHEZ: National

court’s referral

• Administrative Court in Sofia:

– Referral to CJEU

– relevant protected characteristic is ethnic origin

– hesitation over direct and indirect discrimination and

whether the practice here amounts to either for the

purposes of Directive 2000/43

© S

late

r and G

ord

on L

imited 2

014

18

Directive 2000/43:

Article 2(2)(a)

• where one person is treated less favourably than

another is, has been or would be treated in a

comparable situation

• on grounds of racial or ethnic origin

© S

late

r and G

ord

on L

imited 2

014

19

Directive 2000/43:

Article 2(2)(b)

• where an apparently neutral provision, criterion or practice

• would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons

• unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary

© S

late

r and G

ord

on L

imited 2

014

20

CHEZ: questions

for the CJEU

• The scope of the prohibition against discrimination, and

whether it includes associative discrimination

• Whether the practice amounts to direct or indirect

discrimination, and the distinction between the two

• justification

© S

late

r and G

ord

on L

imited 2

014

21

CHEZ: CJEU’s ruling

• associative discrimination– principle of equal treatment should be interpreted as

applying not to a particular category of person but, rather, by reference to the grounds

– it is Roma origin, that of most of the other inhabitants of the district in which she carries on her business, which constitutes the factor on the basis of which she considers that she has suffered less favourable treatment or a particular disadvantage.

© S

late

r and G

ord

on L

imited 2

014

22


• associative discrimination

– intended to apply…irrespective of whether that

collective measure affects persons who have a

certain ethnic origin or those who, without possessing

that origin, suffer, together with the former, the less

favourable treatment or particular disadvantage

resulting from that measure.

© S

late

r and G

ord

on L

imited 2

014

23


• direct discrimination

– whether the Roma origin of the majority of the

inhabitants of Gizdova determined the decision to

impose and/or maintain the practice

© S

late

r and G

ord

on L

imited 2

014

24


• direct discrimination: burden of proof

– Only in districts where majority of population of Roma

origin

– Tampering with the electricity supply asserted without

evidence to be mainly by those of Roma origin

– No consideration of individual circumstances

– Practice in place for nearly 25 years

© S

late

r and G

ord

on L

imited 2

014

25


• direct discrimination

– For CHEZ to show that neither establishment or

retention of practice is in any way founded on the

ethnic origin of the majority of the inhabitants of

Gizdova

– Unfavourable treatment

– Comparator group

© S

late

r and G

ord

on L

imited 2

014

26


• indirect discrimination

– whether in order for there to be indirect discrimination,

the particular disadvantage must have been brought

about for reasons of racial or ethnic origin

– although using neutral criteria not based on the

protected characteristic, it has the effect of placing

particularly persons possessing that characteristic at

a disadvantage

© S

late

r and G

ord

on L

imited 2

014

27


• indirect discrimination

– practice constitutes, in principle, a practice and a

criterion that are apparently neutral

– liable to affect those of Roma ethnic origin in

considerably greater proportions, and to put them at a

particular disadvantage compared with other persons

– consideration of the group for comparison

– practice could in principle be indirectly discriminatory

© S

late

r and G

ord

on L

imited 2

014

28


• justification

– Legitimate aims

– Need to justify retention as well as establishment of

practice almost 25 years previously

– Appropriate and necessary

© S

late

r and G

ord

on L

imited 2

014

29


• Justification and proportionality

– Legitimate interests of customers in supply of

electricity with stigmatising effect

– Legitimate interest of customers in being able to

check their consumption

– Blanket nature of the practice

© S

late

r and G

ord

on L

imited 2

014

30

CHEZ: some questions

and implications

• scope of associative indirect discrimination

• the interaction between direct and indirect

discrimination

• compatibility of section 19 Equality Act

CHEZ

The boundary between direct and indirect discrimination

© S

late

r and G

ord

on L

imited 2

014

32

Article 2, Directive 2000/43

• where an apparently neutral provision, criterion or practice

• would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons,

• unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

© S

late

r and G

ord

on L

imited 2

014

33

S19(2) Equality Act

• “(1) … if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

• (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.

Case

study

Employment Lawyers Association Conference 2016 ......Employment Lawyers Association Conference 2016...

Documents

Transcript of Employment Lawyers Association Conference 2016 ......Employment Lawyers Association Conference 2016...