The Reason Why: Unravelling Indirect Discrimination

Abstract

In principle, the divide between direct and indirect discrimination is vivid. Direct discrimination deals with equal treatment, proscribing less favourable treatment because of a protected characteristic. Indirect discrimination recognises that equal treatment may itself have a disparate impact. As Baroness Hale put it in Homer, ‘The law of indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic.’ The focus is on the impact rather than the treatment: while direct discrimination requires a showing that the less favourable treatment was ‘because of’ the protected characteristic, it is the disparate impact of an apparently neutral requirement that establishes a prima facie case of indirect discrimination. The respondent’s opportunity to explain the requirement comes in the form of the justification defence, which the court will scrutinise to determine whether it is a proportionate means of achieving a legitimate aim. This structure is epitomised in the EU Race Directive, which defines indirect discrimination as occurring when ‘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.’ Yet in the recent Essop case, the Court of Appeal has insisted that the applicants establish, not just that the provision, criterion or practice (PCP) in fact puts people with a protected characteristic at a particular disadvantage, but also the ‘reason why’ the PCP does so. This is before the burden shifts to the respondent to justify the PCP. This approach has been followed by the Court of Appeal in the more recent Naeem case.