Employers will welcome a Court of Appeal ruling that it is not enough for claimants seeking to establish indirect discrimination to produce statistics showing disadvantage to a protected group. In UK Border Agency v Essop concerning an assessment for which BME/older candidates had a lower success rate, the Court of Appeal disagreed with the EAT and ruled that a claimant must also show why the claimed disadvantage is said to arise for that group and that it also applies to the claimant.

However, a tribunal may be able to infer the required reason from the statistics, in the absence of any other explanation, and it will then be for the employer to establish objective justification.