For certain higher grade posts in the Civil Service candidates had to pass a core skills assessment (CSA) test. A number of claimants employed by the Home Office who were from black and minority ethnic (BME) backgrounds and over 35 failed the test. Statistical evidence from a report commissioned by the Home Office showed that BME and older candidates were systematically less likely than younger and non-BME candidates to pass the CSA. No reason was identified to explain the differential impact and many BME and/or older candidates passed the CSA. Conversely, many white candidates also failed the CSA, including white candidates who were 34 or younger. Nevertheless, the claimants brought proceedings against the Home Office, arguing that the requirement to pass the CSA amounted to indirect race discrimination.
At a pre-hearing review, the Employment Judge decided that, in order to establish indirect discrimination, the individual claimants had to show why they had failed the CSA; it was not enough for them simply to show that they had failed it. The claimants successfully appealed the Tribunal's decision, the EAT finding that the claimants did not have to show why they had failed the test; it was enough, to establish indirect discrimination (subject to the defence of justification) for the group to show that they shared a protected characteristic and were placed at a particular disadvantage.
The Court of Appeal has now allowed the employers' appeal. The Court ruled that the claimants must prove the nature of the group disadvantage and that each claimant must also prove that he suffered the same disadvantage. Many older and BME candidates did pass, so it was not the case that the failure must necessarily have been because of the disadvantage, as opposed to the CSA itself. As the Court explained, the principle that individual disadvantage must be shown has already been evident from previous cases, for example:
- An employee arguing that full-time work disadvantages females must show that the reason for this (childcare responsibilities, for example) applies to her.
- An employee who asserts that a restriction on wearing a cross at work disadvantages Christians must prove why it disadvantages that group and that she is disadvantaged in the same way.
Here, the claimants had shown group disadvantage but not that each claimant's failure was a consequence of this. Although it was arguable that failure was probably a consequence of the group disadvantage, it could have been unrelated.
This is not by any means the end of the road for the claimants, however. As the Court acknowledged, it would in principle be possible for a claimant to argue that the report proved the case sufficiently to the point at which there would be a burden of disproof on the employers. But even if the employers could not rebut this, it would still be open to them to justify the requirement to pass the CSA, in which case the reason for the claimant failing it would not matter. This highlights the importance of employers being able to demonstrate that a selection procedure is proportionate; going no further than is necessary to achieve the recruitment objective.