THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

indirect discrimination against Asian residents of the borough. The Court of Appeal
unanimously dismissed the appeal.
41. The definition of indirect discrimination is found in section 19 of the Equality Act 2010
(copy attached). In short, indirect discrimination arises if a public authority applies a
neutral provision, criterion or practice to everyone, but which (i) places a group of
people sharing a protected characteristic at a particular disadvantage when
compared with persons who are not part of that protected group; and (ii) which
cannot be objectively justified.
42. On the indirect discrimination point, the Court held that:-
(1) First, a decision to close libraries was capable of being a “provision,
criterion or practice” within the meaning of section 19 of the 2010 Act;
(2) Secondly, there is no need for there to be an intrinsic link between the
relevant protected characteristic (in this case, race) and the particular
disadvantage suffered. It is possible to establish indirect discrimination by
comparing the proportion of Asians adversely affected by the proposal
with the proportion of non-Asians so affected. If the statistics reveal
Asians are placed at a “particular disadvantage” when compared to non-
Asians, a prima facie case of indirect discrimination will be made out.
(3) Thirdly, it was not enough to establish a risk of indirect discrimination
against Asians to demonstrate that they were the most numerically
disadvantaged – that followed from the fact that they were the largest
ethnic group amongst the users of Brent libraries. The appropriate “pool”
for indirect discrimination purposes was library users, rather than a pool
comprising the entire population of the borough (the vast majority of
whom did not use library services). If that pool was used, the statistics
did not support any claim that there was indirect discrimination. The
Asian users of the libraries were not proportionately more disadvantaged
than non-Asians. 76% of Asian users and 76% of non-Asian users use
the libraries that remain and 24% of Asian users and 24% of non Asian
users use the libraries that will close.
43. The Court also noted that the possibility of discrimination, direct or indirect, against
the Asian community or Asian library users never really featured in the evidence filed
by the claimants or in objections made before the Council’s decision. The point about
indirect discrimination had been used as a collateral means of achieving the desired
Joanne Clement, 11KBW
t. 020 7632 8500 e. Joanne.Clement@11kbw.com
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