These two appeals were heard together because they both raised issues arising from claims of indirect discrimination. Mr Essop, one of a group of 49 people, was required to pass a Core Skills Assessment (CSA) as a pre-requisite to promotion to certain civil service grades.

A 2010 report established that Black and Minority Ethnic (BME) candidates, as well as older candidates, had lower pass rates than white and younger candidates yet it could not be identified why this was so. The appellants argued that the requirement to pass the CSA amounted to indirect discrimination on the grounds of race or age.

Mr Naem was an iman working as a chaplain for the Prison Service. From 2001-2004 he worked on a seasonal basis but then became a salaried employee. He argued that other chaplains, such as Christian Chaplains, were being paid more based on incremental increases in their salary based on their longer service. He claimed that the pay scheme was indirectly discriminatory against Muslim or Asian chaplains, resulting in lower pay where

A 2010 report established that Black and Minority Ethnic (BME) candidates, as well as older candidates, had lower pass rates than white and younger candidates yet it could not be identified why this was so. The appellants argued that the requirement to pass the CSA amounted to indirect discrimination on the grounds of race or age.

Mr Naem was an iman working as a chaplain for the Prison Service. From 2001-2004 he worked on a seasonal basis but then became a salaried employee. He argued that other chaplains, such as Christian Chaplains, were being paid more based on incremental increases in their salary based on their longer service. He claimed that the pay scheme was indirectly discriminatory against Muslim or Asian chaplains, resulting in lower pay where length of service served no useful purpose as a true reflection of ability or experience.

In allowing the Essop appeal, the Court stressed that the disadvantage suffered by the individual must correspond with the disadvantage suffered by the group. The provision, criteria or practice (PCP) in this case was the test itself which was demonstrably uneven despite the fact that nobody could say why that was the case. Yet the question of whose problem it was that this contextual factor existed was key to the decision, and the Court held that there was no requirement for the affected employees to identify its precise nature. If the evidence points towards the existence of a disadvantage which is linked to a protected characteristic, then the task of justifying the PCP falls on the employer. In other words, the employer cannot exonerate itself by shifting the responsibility to the employee to explain exactly why the disadvantage exists.

In the Naeem appeal, whilst the justification for the incremental pay scale was to reward loyalty and experience, The Prison Service had made attempts to move away from its operation and reward more on assessed performance. The changes to this system intended to reduce disadvantages to particular groups and thus it was deemed a system ‘in transition’. The Court held that the disadvantage suffered by Mr Naeem was no more than was necessary as the transition to a new shorter pay scale took its course. Mr Naeem’s appeal was dismissed.