Essop v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27

In brief

The Supreme Court held that to establish indirect discrimination under the Equality Act 2010, a claimant does not need to prove the reason why a provision, criterion, or practice (PCP) puts their group at a particular disadvantage. It is sufficient to show that the PCP does in fact create group disadvantage and that the individual suffers that disadvantage, but a causal connection between the PCP and the disadvantage suffered by the group and by the individual is essential; a correlation is not itself a causal link, and the respondent may show that the individual was not disadvantaged by the PCP (paras 25, 28, 32, 33). The burden then shifts to the employer to justify the PCP. This removed an evidential hurdle that some lower courts had imposed (the Employment Judge and the Court of Appeal in Essop, and the Court of Appeal in Naeem, which required a reason peculiar to the protected characteristic; the Employment Appeal Tribunal in Essop had held the opposite) (paras 10, 15), confirming that no explanation of why the PCP disadvantages the group is needed (paras 24–25, 33).

Key provisions

• paras-24-33 — claimants need not prove why a practice disadvantages their group : Claimants need not prove why a provision, criterion, or practice (PCP) disadvantages their group — only that it does.
• holding-1 — Statistical or other evidence of group disadvantage may be sufficient; the reason need not be explained, but a causal connection between the PCP and the disadvantage is essential : Statistical or other evidence of group disadvantage can establish the particular disadvantage. No explanation of the reason for the disparity is required, but a causal connection between the PCP and the disadvantage is essential, and a correlation is not itself a causal link (paras 24, 25, 28, 33).
• holding-2 — The burden of justification falls on the employer once disadvantage is established : Once group disadvantage and the individual's disadvantage (section 19(2)(b) and (c)) are both established, the respondent bears the burden of showing that the PCP is a proportionate means of achieving a legitimate aim (paras 29, 42, 47).
• Context-specific assessment is required — blanket assertions of 'no impact' are insufficient : Toolkit analysis (not a holding of the judgment): context-specific assessment is required, and blanket assertions of "no impact" are insufficient — the employer should provide evidence-based analysis of the policy's actual effects. The nearest passage, in the unanimous judgment, records Langstaff J's remark in the EAT that a wise employer will monitor how its practices affect different groups (para 29).

When relevant

All EqIA assessments, policy review, and proportionality analysis. The principle that impact outweighs intention underpins the toolkit's approach to assessing whether policies create disparate impact on trans, nonbinary, or gender non-conforming people — regardless of whether the organisation intended any disadvantage. Directly grounds L1-3 §4 and L1-15 EqIA Guidance.