employment lawyers association conference 2016 ......employment lawyers association conference 2016...
TRANSCRIPT
Employment Lawyers Association Conference 2016
Developing Indirect
Discrimination
Rachel Crasnow QC
020 827 40001
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
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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;
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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?
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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.
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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
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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
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Project titleDate Month 2014
Employment Lawyers Association
Conference 2016
Developing indirect discrimination
Emma Hawksworth, Slater and
Gordon
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Expanding the scope
• C-83/14 CHEZ Razpredelenie Bulgaria AD v
Komisia za zashtita ot diskriminatsias [2015]
IRLR 746
CHEZ
V KZD
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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)
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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
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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
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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
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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
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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.
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CHEZ: CJEU’s ruling
• 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.
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CHEZ: CJEU’s ruling
• direct discrimination
– whether the Roma origin of the majority of the
inhabitants of Gizdova determined the decision to
impose and/or maintain the practice
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CHEZ: CJEU’s ruling
• 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
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CHEZ: CJEU’s ruling
• 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
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CHEZ: CJEU’s ruling
• 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
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CHEZ: CJEU’s ruling
• 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
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CHEZ: CJEU’s ruling
• justification
– Legitimate aims
– Need to justify retention as well as establishment of
practice almost 25 years previously
– Appropriate and necessary
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CHEZ: CJEU’s ruling
• 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
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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
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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.
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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
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Case study
• Questions and conclusions