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Indirect discrimination in Naeem and Essop

Sean Jones QC considers the questions likely to come before the Supreme Court in two upcoming employment appeals

20 April 2016

Having granted permission to appeal in Naeem v Secretary of State for Justice [2015] EWCA Civ 1264 this month and joined it with the extant appeal in Essop v Home Office (UK Border Agency) [2015] EWCA Civ 609, the Supreme Court is now poised to tackle some of the most difficult aspects of the law of indirect discrimination.

Indirect discrimination is a concept that seems to become harder to grasp the harder you look at it. The basic idea is easy enough. The most common illustration is a height requirement. Imagine a police force insists that all recruits
be six feet tall. It would then be applying what section 19 of
the Equality Act 2010 calls a 'provision, criterion or practice', or, as hipster employment lawyers would have it, a 'PCP'. It is applied equally to all candidates.

However, because on average women are shorter than men, women candidates as a group
are placed at a 'particular disadvantage'. If a 5' 10&qu...

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