As you may have seen in the news, Transport for London proposes that drivers of private hire vehicles must undertake tests in reading and writing basic English. They argue that the requirements are necessary for customer safety and public protection.
Uber took TfL to the High Court, claiming that this rule is indirect racial discrimination that threatens the livelihood of tens of thousands of drivers.
The case is based around three individually licensed Uber drivers, from Hungary, Bulgaria and Pakistan. Two of them have completed over 2,000 trips as registered drivers, and never once been requested to communicate in reading or writing.
Tom de la Mare QC told the judge that the language requirement would contribute to 70,000 applicants failing to obtain a licence over the next three years, and would reduce the number of PHV drivers to about 45% of current levels by 2019/20.
He said it gives rise to indirect discrimination on the grounds of race and nationality, as it has a disproportionate impact on drivers from countries where English is not generally spoken.
Indirect discrimination
Indirect discrimination is when a seemingly neutral policy disproportionately affects a group of people with a protected characteristic.
For example, a requirement that applicants must be 6-foot tall will discriminate against women. A requirement to work on Saturdays will discriminate against Jewish people who observe the Sabbath, and a requirement to work on Sundays will discriminate against practising Christians.
Indirect discrimination is covered by the Equality Act 2010, which aims to ensure that no group is disadvantaged by a practice, policy or rule that applies to everyone.
The practice, policy or rule can be formal or informal, a one-off or future decision, an arrangement, criteria, condition, qualification or provision.
For indirect discrimination to apply, the rule has to apply to everyone. If it’s a rule that applies just to people with the same protected characteristic, it would be direct discrimination.
Protected characteristics include:
- Age
- Disability
- Gender reassignment
- Marriage or civil partnership
- Race
- Religion or belief
- Sex
- Sexual orientation
If it affects you personally, you can challenge a practice, policy or rule that you think is indirectly discriminatory. You need to show that people who share your protected characteristic are also disadvantaged by the rule, but that other people aren’t.
To build your claim, you will need to rely on statistics, common knowledge, and expert help.
Note that it’s not indirect discrimination if the person or organisation who applies the practice, policy or rule can prove in court that there is a good enough reason – this is known as ‘objective justification’.
To win the Uber case, TfL will need to justify why it is necessary for PHV drivers to speak and write good English.
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