Claimants have to show personal disadvantage from a detrimental policy.
In the case of Home Office v Essop, the Court of Appeal has held that in indirect discrimination claims, claimants must show that the application of a provision, criterion or practice (PCP) not only causes disadvantage to a group of employees with a protected characteristic of which the claimant is a member, but also why that PCP causes them personal disadvantage.
The Home Office required all staff to pass core skills assessment in order to become eligible for promotion. This was a generic test for all jobs at the same level, regardless of role. A statistical report commissioned by the employer concluded that black and minority ethnic (BME) and older candidates had a proportionately lower pass rate than white and younger candidates. The report did not offer any reason for the difference.
The claimants, who were all from a BME background and/or over the age of 35, had all failed the assessment and so were ineligible to be considered for promotion. Using the statistical report as evidence, they claimed indirect discrimination on the basis that:
Tribunal and EAT
The employment judge accepted that BME and older candidates had been disadvantaged by having to take the assessment, but maintained it was also necessary to show that the claimants themselves had been personally disadvantaged by the test and why this was the case. The claimants appealed. The Employment Appeal Tribunal allowed the appeal on the basis that the Equality Act 2010 did not require claimants to show why they had been disadvantaged. The employer appealed.
In overturning the decision of the EAT, the Court of Appeal held that the claimants needed to establish why the requirement to pass the assessment had disadvantaged the group and the individual claimants. It was not enough for the employees to prove they formed part of a group that was less likely to pass the test.
The court considered this case to be no different in principle from other types of indirect discrimination claims and said it was similar to a female employee asserting that a requirement to work full-time disadvantaged female employees. Claimants must prove this group is disadvantaged (say, because women have traditionally taken the main share of childcare responsibilities) and that the same disadvantage applies to a female employee, (namely that she is disadvantaged by her childcare responsibilities).
The court did, however, accept that a statistical report could prove a particular group was disadvantaged. Where neither side is able to explain why the race and/or age groups, or groups with other protected characteristics to which the claimants belong, are disadvantaged, claimants will be able to rely on such reports as evidence that each claimant was personally disadvantaged in the same way as the group as a whole. This was, however, a matter for the employment tribunal to determine. If the claimants could establish their case in this way, it would then be for the employer to challenge individual cases on the reason why a candidate had failed the assessment.
This case makes it clear that for claimants to establish a case of indirect discrimination, they must establish a PCP and show why it disadvantaged the group and why it disadvantaged them personally. In cases where there appears to be no reason to explain statistical evidence that shows an impact on a particular group, claimants can try to rely on the statistics alone to support their arguments for both group and personal disadvantage.
Sally Gwilliam: Senior employment solicitor at Genus Law
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