25 May, 2017
Readers will be familiar with the fact that anti-discrimination law in most jurisdictions protects people with specific characteristics against direct and indirect discrimination. While direct discrimination is often obvious, indirect discrimination can be much harder to identify and prevent.
The specific tests for identifying indirect discrimination vary across jurisdictions, however broadly speaking, it involves a policy or requirement which is applied equally to all, but which disadvantages a person with a protected attribute and is not reasonable or justified in the circumstances.
Landmark indirect discrimination decision in Hong Kong: same-sex spousal rights
In Hong Kong, the landmark case of Leung Chun Kwong v Secretary for the Civil Service and Commissioner of Inland Revenue was handed down on 28 April 2017. The Court held that government policy refusing to grant civil service benefits to the same-sex spouse of a civil servant constituted unlawful indirect discrimination on the basis of sexual orientation.
The Hong Kong Secretary for Civil Service had informed the applicant, a civil servant who had married his spouse outside Hong Kong, that as same-sex marriage falls outside of the definition of marriage under Hong Kong legislation, the applicant's same-sex spouse was not entitled to benefits that would otherwise have been extended to an opposite-sex spouse of a civil servant under the Civil Service Regulations.
The Court noted that Hong Kong law does not recognise same-sex marriage, that the applicant could not enter into a heterosexual marriage given his sexual orientation and that the difference in treatment accorded to the applicant was therefore based, at least indirectly, on his sexual orientation. The Court went on to hold that there was no sufficient justification for the differential treatment of the applicant as there was nothing illegal or unlawful in granting the same spousal benefits to, and indirectly recognising, an overseas same-sex married couple. Further, the denial of spousal benefits to homosexual couples who were legally married under foreign laws would not undermine the integrity of the institution of marriage in Hong Kong or protection of the institution of the traditional family. In the circumstances, the decision by the Hong Kong Secretary for Civil Service was found to constitute unlawful discrimination.
A UK experience
A recent UK case provides a salutary reminder to employers that indirect discrimination can be found in unexpected places and that a policy applied uniformly can affect different parts of a diverse workforce differently. In Essop and others v Home Office (UK Border Agency), the UK Supreme Court held that it is not essential for a person who claims indirect discrimination to show why the provision, criterion or practice complained of puts them at a particular disadvantage compared to people without the protected characteristic.
The case revolved around a Core Skills Assessment (CSA), which all Home Office employees were required to sit and pass in order to become eligible for promotion. An equality impact assessment of this test identified that candidates from black and minority ethnic backgrounds and candidates over 35 years of age had significantly lower pass rates than white and younger candidates. The reason for this was not clear. A group of employees who failed the test brought a claim of indirect discrimination. The Home Office argued that the appellants had to show why the requirement to pass the CSA put the group at a disadvantage. The Supreme Court disagreed with the Home Office.
It found that for the purposes of indirect discrimination, the causal link that must be shown is between the provision, criterion or practice and the disadvantage suffered, not between the protected characteristic and the disadvantage. This meant that the appellants did not need to prove the reason for the lower pass rate. It was enough to show that their group had suffered a disadvantage as a result of the CSA when compared with other groups.
European experiences: Spain, Germany and France
In Spain, the Supreme Court declared in its resolution dated 24 January 2017 that where a woman stops working night shift for safety reasons, and so loses her additional night shift payment, this constitutes unlawful indirect discrimination based on sex.
German labour courts have held that job advertisements targeting "native speakers" or "speakers without accent" constitute unlawful indirect discrimination based on ethnic origin unless the position necessarily requires a native speaker.
Under French law, discrimination on the basis of gender, family situation, or pregnancy can be direct or indirect.
Indirect discrimination remains a developing area of law and one to watch.
For further information, please contact:
Jon Lovell, Partner, Ashurst
jon.lovell@ashurst.com
