Indirect Discrimination

Shiva Shadi, Partner and Head of Employment at Davis Blank Furniss

The Supreme Court has recently held in Essop and others v Home Office (UK Border Agency) and Naeem v Secretary for Justice that in order to succeed with a claim for indirect discrimination, it is not necessary to establish the reason for the particular disadvantage to which a group is put compared to another.

The Supreme Court held that the essential element is a casual connection between the provision, criterion or practice (“PCP”) and the disadvantage suffered not only by the group but also by the individual.

There are various reasons or “context factors” why one group may find it harder to comply with the PCP than others – the factors may be genetic, social, or even another PCP. It is not necessary for the PCP to place every member of the group at a disadvantage.

This case makes it clear that an employer should consider the effect of any PCP on any particular group and how it may effect employees within that group.

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