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Indirect Discrimination – Statistical Evidence - CA Guidelines – Home Office (UK Border Agency) v Essop and others [2015] EWCA Civ 609

Some black and minority ethnic (‘BME’) and older (35+) employees alleged indirect discrimination by the Home Office. They had all failed the Core Skills Assessment (‘CSA’) that was necessary in order to be eligible for promotion.

They argued that passing the test was a provision, criterion or practice (‘PCP’) per s.19 of the Equality Act 2010 that disadvantaged them and resulted in indirect discrimination.

Two reports had concluded that BME and older candidates had a proportionately lower CSA pass rate than white and younger candidates. It was agreed that (i) neither report identified a reason to explain the differential impact and (ii) many BME and / or older candidates passed the CSA.

The Employment Judge considered it was not the fact of failure but the increased likelihood of failure that disadvantaged the Claimants. And once that particular disadvantage to the group was established, the Tribunal had to determine whether the relevant Claimant was actually put at that disadvantage, to consider the defence of justification and whether the indirect discrimination was unlawful under s.39(2). It was possible, absent any discrimination, the relevant Claimant would not have passed the CSA.

The EAT President, Langstaff J, considered that the Employment Judge erred in asserting that “the mere fact of failure of the CSA in any particular case is not determinative of whether the Claimant has been put at that disadvantage”.

But the CA disagreed: each claimant, in addition to proving the nature of the group disadvantage (the s.19(2)(b) hurdle), had to prove that he suffered the same disadvantage (the s.19(2)(c) hurdle). Giving important guidance for anyone considering indirect discrimination claims, the Court held that it will be open to a claimant to rely on the reports as evidence in support of the necessary assertion that each claimant was personally disadvantaged by the PCP and to submit to the ET that the report proves facts which, in the absence of any other explanation, the ET could decide (subject to objective justification) that the discrimination is proved.

Paul Stewart / 1st Jul 2015


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