Addressing Disparate Impact: Indirect Discrimination and the Public Sector Equality Duty

Abstract

Over three decades since its first articulation as a decisive step forward from the simple principle of equal treatment, the concept of indirect discrimination remains surprisingly fragile. Its emphasis on impact rather than treatment, its linkage of individual and group and its invitation to forward-looking and pre-emptive remedial action, remain challenging. For courts and practitioners, accustomed to the more familiar model of statutory torts which impose liability on one individual for damage caused to another individual, the temptation to re-introduce elements of the equal treatment model lurks just beneath the surface. It is therefore encouraging to see the Employment Appeal Tribunal (EAT) in Essop1 robustly reasserting the fundamental result-oriented nature of indirect discrimination, reversing the Employment Judge’s attempt to re-introduce individualised elements into the test. This reinforces Lady Hale’s valuable judgement in Homer,2 which stabilised the group-based orientation of indirect discrimination in the face of the lower courts’ individualistic approach.