UK Border Agency v Essop EWCA/Civ/2015/609
Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) to a group of individuals, including one or more with a protected characteristic. Although the PCP applies to the group, it puts or would put persons with that protected characteristic at a particular disadvantage, and the employer cannot show that the PCP is a proportionate means of achieving a legitimate aim (s19 Equality Act 2010).
In this case, the Court of Appeal gives guidance as to how a tribunal should approach the requirement for claimants to show both group and their own personal disadvantage.
All Home Office staff seeking promotion above a certain level have to pass a generic core skills assessment test. Statistical evidence suggested BME candidates aged over 35 were less likely to pass the test than younger non-BME candidates. The claimants (who were from BME backgrounds and aged over 35) failed the test and brought indirect age and race discrimination claims.
The employment tribunal accepted that the statistics established group disadvantage, but that the claimants also needed to show the reason why they personally had failed the test. The EAT upheld the claimants' appeal, holding that s19 Equality Act required the claimants to show that they had suffered a disadvantage, but not the reason why.
The Court of Appeal overturned the EAT's decision. It held that the claimants needed to be able to show why the PCP had disadvantaged both the group and the individuals. In this case, many BME and older candidates had passed the test, and the court could not see any logical reason why someone who had failed did so only because they suffered a disadvantage as a member of the disadvantaged, BME, 35+ group. The most that could be said was that the members of the group were proportionately more likely to fail. Once it was established that there was a group disadvantage, the claimant had to show that being an older BME candidate was the reason for their failure.
What to take away
The Court of Appeal has made clear that it is not enough to say that members of a group are proportionately disadvantaged by a PCP without demonstrating why the relevant protected characteristic was the reason. However, since the burden of proof shifts to the employer to disprove discrimination once the claimant has shown a prima facie case, the statistics may be enough to suggest this in the absence of any other evidence suggesting another explanation.