Essop v Home Office [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. The burden then shifts to the employer to justify the PCP. This removed a significant evidential hurdle that lower courts had incorrectly imposed, confirming that indirect discrimination focuses on effect, not motive or explanation.

Key provisions

• Impact, not intention, determines indirect discrimination — claimants need not prove why a practice disadvantages their group: Impact, not intention, determines indirect discrimination. 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 is sufficient; no causal explanation is required: Impact, not intention, determines indirect discrimination. Claimants need not prove why a provision, criterion, or practice (PCP) disadvantages their group — only that it does.
• holding-2 — The burden of justification falls on the employer once disadvantage is established: Statistical or other evidence of group disadvantage is sufficient to establish indirect discrimination. No causal explanation for the disparity is required.
• holding-3 — Good intentions do not excuse disproportionate impact: Once group disadvantage is established, the burden of justification shifts to the employer. The employer must demonstrate that the PCP is a proportionate means of achieving a legitimate aim.
• Context-specific assessment is required — blanket assertions of 'no impact' are insufficient: Context-specific assessment is required. Blanket assertions of "no impact" are insufficient — the employer must provide evidence-based analysis of the policy's actual effects.

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.