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Indirect Discrimination – establishing individual as well as group disadvantage

In the case of Home Office (UK Border Agency) v Essop, the Court of Appeal has held that a Claimant who complains of indirect discrimination under the Equality Act 2010 must establish not only that In the case of Home Office (UK Border Agency) v Essop, the Court of Appeal has held that a Claimant who complains of indirect discrimination under the Equality Act 2010 must establish not only that they were part of a disadvantaged group, but also why the relevant provision, criterion or practice ("PCP") put them at an individual disadvantage.

When claiming indirect discrimination, a Claimant must establish that their employer had a PCP that applied to everyone but which put them at a disadvantage due to a protected characteristic (sex, race, disability etc).

In this case, the Home Office had a PCP in place which required all staff within a specific salary band to sit and pass a core skills assessment ("CSA") in order to become eligible for promotion.

In 2009, the Home Office commissioned a report on the equality impact of the CSA, the result of which was that black and ethnic minority employees and older employees had a proportionately lower pass rate than white and younger employees.

This led to over 50 Tribunal claims being issued against the Home Office on the basis (the Claimants argued) that the requirement to take the CSA amounted to indirect race and/or indirect age discrimination. The Employment Tribunal held that it would not be enough for the Claimants to establish that they were part of the disadvantaged group of employees who were less likely to pass the test, they would also have to establish the reasons why they were individually less likely to pass.

When the judgments went against the Claimants, they appealed the decision. The original decision was subsequently overturned by the Employment Appeals Tribunal ("EAT"). On appeal the Judge considered that the legislation did not require the Claimants to establish why they were individually disadvantaged by taking the CSA, just that they were disadvantaged. Unsurprisingly, the Home Office appealed this decision.

The Court of Appeal unanimously overturned the EAT's decision. It was held that although the legislation does not specifically require Claimants to establish the reason why they were disadvantaged, it was (in the Court of Appeal's view) impossible to establish a group disadvantage without also establishing why the disadvantage had arisen in the first place. The Claimants argued that they had already established why the disadvantage had arisen, using the report commissioned by the Home Office as evidence. However, the difficulty for the Court of Appeal was whether the Claimants could also establish that they had individually been put to the same disadvantage (as the whole group), as required by the legislation. The Court of Appeal held that they could not. It held that the group disadvantage was not the actual failure of the CSA, because many black and ethnic minority employees as well as many older employees did pass the CSA and there was no logical basis to assert that those who did not only failed because they were from a black or ethnic minority or they were older.

The Court of Appeal held that whilst the statistical report was capable of being relied upon to establish a group disadvantage, it was up to each individual Employment Tribunal to determine whether or not Claimants could rely on the same report to establish individual disadvantage. For any Claimant who failed to establish individual disadvantage, their claim should therefore be dismissed outright. However, for any Claimant who succeeded in establishing individual disadvantage, it would then be up to the Home Office to establish that the PCP was a proportionate means of achieving a legitimate aim. If it did, the Claimant's claim would also fail.

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