The Legal Test in a Case of Indirect Discrimination

Under the Equality Act 2010 (pertaining to equality act case law), it is unlawful for an employer to apply a provision, criterion or practice (“PCP”) irrespective of any protected characteristic, such as gender or race, which would or does put workers who share a protected characteristic at a disadvantage, and puts the individual who claims the discrimination at such a disadvantage.

In the previous decision of the Court of Appeal in the case of Essop v Home Office, it was held that in relation to indirect discrimination under the Equality Act 2010 (“the Act”), it was a requirement that a Claimant must show the reason why a PCP put them at a particular disadvantage. However, this decision was recently overturned by the Supreme Court. The facts of the case were that In order to be considered for promotion, the Home Office applied a criterion that staff had to sit and pass a ‘core skills assessment’ (“CSA”).

This assessment was a general test, which was based on the level in salary structure and not a particular role. If the candidate passed this test, they were then tested on an assessment tailored to their particular role.

In 2009, the Home Office commissioned a report to assess the equality impact on the CSA. This report found that older candidates and candidates who were of a black and ethnic minority (“BEM”) had a lower pass rate on the CSA than the younger and white candidates. Based on this report, there were 52 Employment Tribunal claims issued against the Home Office for indirect race and age discrimination for applying a criterion that candidates had to sit a CSA to be considered for promotion.

The Employment Tribunal were requested to provide a declaratory judgment to determine specifically what the Claimants would need to prove to establish group and individual disadvantage, as required to be proved by the Equality Act 2010. The Employment Judge held that the Claimants would not only need to establish that they formed part of the group which was less likely to pass the CSA. Each Claimant would need to also establish the reason why they were less likely to pass.

This decision was overturned by the Employment Appeal Tribunal and held that the Claimants did not need to establish the reason why they were subjected to a disadvantage; they only needed to prove that he or she was.

The Home Office appealed this decision to the Court of Appeal. The Court of Appeal overturned this decision and decided that a Claimant who complains of indirect discrimination under the Act, must not only establish that he or she was a member of a group that has been disadvantaged by a PCP of the employer, but also must establish why the relevant PCP has disadvantaged him or her as an individual.

Therefore, the Claimants appealed to the Supreme Court. The Supreme Court allowed the Claimants’ appeal and decided that there had never been any express obligation for an explanation of the reasons why a particular PCP put one group at a disadvantage when compared with others. It is sufficient to show that it does. In addition, a PCP did not need to put every person of the group sharing a protected characteristic at a disadvantage.

In the current case, it was immaterial that some BME or older candidates could pass the CSA, the group was at a disadvantage because the percentage who could pass was smaller than the percentage of younger or white applicants.

The Supreme Court accepted that the disadvantage suffered by the individual must correspond with the disadvantage suffered by the group and in the current case, the disadvantage was that BME and older candidates failed the CSA disproportionately and therefore the Claimants were put at a disadvantage.

It was, however, still open for the Home Office to show that there was no causal link between the PCP and the individual disadvantage by showing the applicant who failed the CSA was because he or she did not prepare, or failed to attend the test. Therefore, the Supreme Court allowed the appeal and remitted the case back to the Employment Tribunal. This case provides the final clarification for employers and workers alike as to what the legal test is in the case of indirect discrimination.