Essop v Home Office (UK Border Agency)

It is not necessary for an individual claimant to prove the precise reason why they personally suffered a disadvantage where reliable evidence shows a provision, criterion or practice places their protected group at a particular disadvantage.

Where statistical or other reliable evidence demonstrates a disparate impact on a protected group, that evidence can establish that the individual is "at that disadvantage" for the purposes of section 19(2)(c) of the Equality Act 2010, subject to the employer's opportunity to justify the PCP.

The appeal arises from a pre-hearing review in which Employment Judge Baron held that each claimant must prove why they personally failed a Core Skills Assessment (CSA) before indirect discrimination could be established.

The cases were test claims that older BME candidates failed the CSA at a statistically higher rate, affecting promotion to HEO and above in the Civil Service. For the hearing it was assumed there was a significant group disparity and no known individual reasons for failure.

The central question was the meaning of "at that disadvantage" in section 19(2)(c) of the Equality Act 2010, and whether individual causal proof was required in addition to group disadvantage evidence.

(1) The appeal is allowed. The Employment Judge erred in law in requiring each claimant to prove the particular reason why they individually failed the CSA test before a claim of indirect discrimination could proceed.

(2) The wording of section 19 does not mandate that an individual must identify the causal mechanism for their personal failure when reliable evidence shows the PCP places their protected group at a particular disadvantage. Evidence of disparate impact can establish that the individual is "at that disadvantage" for section 19(2)(c), subject to the employer's justification defence (see paras [39]; [40]).

(3) Domestic law must, so far as possible, be read consistently with EU law and the purposive approach adopted in the Court of Justice. Where statistics or other reliable evidence demonstrate disproportionate impact, that is sufficient to require the employer to justify the PCP rather than to impose an additional statutory burden on the claimant to prove individual causation (discussion of Enderby and EU authorities).

(4) Requiring individual causal proof would hinder the statutory purpose of eliminating covert discrimination and would risk allowing practices producing disparate impact to remain unchecked simply because the causal mechanism is opaque to claimants and employers.

(5) The matter is remitted to be reheard by the Employment Tribunal in the manner and before the panel it considers most convenient and expedient.

• Employment Appeal Tribunal: Appeal allowed; matter remitted for rehearing to the Employment Tribunal (London South) (see judgment).
• Employment Tribunal (London South): Pre-hearing review decision that each claimant must prove why they personally failed the CSA test (reversed).