A recent judgment of the Court of Appeal suggests that in some indirect discrimination cases there should be a greater focus on the nature of and reason for the claimed disadvantage than has previously been the case. The ruling may make it harder for claimants to make out indirect discrimination in some cases.
Background to the case
A number of Home Office employees brought claims of indirect race and age discrimination after they failed a core skills assessment that they needed to pass to be eligible for promotion. The claimants relied on statistical data showing that black and minority ethnic ('BME') and older candidates had a significantly lower pass rate than white and younger candidates. However, no reason was identified that would explain the differential impact and many BME and/or older candidates did pass the assessment. The claimants argued that, in light of the statistical evidence of group disadvantage to BME and older candidates, it was unnecessary for the Tribunal to consider why they, personally, had failed the assessment: all that they needed to do was establish that they shared the same protected characteristics of the disadvantaged group.
The Court’s ruling
The Court of Appeal rejected the claimants’ submission and ruled that, in assessing whether there has been indirect discrimination, it is necessary to consider the nature of and, therefore, the reason for any alleged disadvantage. This is because a claimant has to show not only that a relevant provision, criterion or practice puts those sharing his protected characteristic at a particular disadvantage, but also that it puts him at that same disadvantage. The Court of Appeal reasoned that to conclude otherwise would mean that any BME or older employee who failed the assessment would be able to succeed in a claim of indirect discrimination regardless of the reasons for their own failure, unless the Home Office could establish a justification.
Burden of proof
The Court of the Appeal’s ruling has come in for criticism from some quarters for making it too difficult, in practice, for claimants to establish indirect discrimination. However, one answer to this point can be found in the way the burden of proof operates in discrimination cases. The Court of Appeal noted that statistical evidence, such as that produced in this case, could be enough to make out a prima facie case, not only of group disadvantage, but also that the individual claimant is likely to have been put at the same disadvantage. The burden would then shift to the employer or service provider (or whoever the defendant may be) to disprove the claimant’s case by establishing either that the disadvantage suffered by the claimant was not the same as the disadvantage suffered by the group, or that the claimant was not in fact disadvantaged at all by the relevant provision, criterion or practice. Whether the statistical evidence in this particular case is enough to establish indirect discrimination remains to be seen as that matter is something for the Tribunal to determine at another hearing.
Effect of the decision
In future indirect discrimination cases we can now expect there to be a greater focus on the nature of and reason for any disadvantage than there has been in the past. In practice, the nature and reason for any disadvantage are self-evident in many cases of indirect discrimination. There remain some cases, however, where that is not the case and these claims are likely to be harder to make out following Essop than might previously have been the case.