Home Office (UK Border Agency) v Essop & Ors

Indirect discrimination requires proof that a provision, criterion or practice places the protected group at a particular disadvantage and that the individual claimant suffers the same disadvantage. The claimant must address why the practice disadvantages the group, but need not identify the precise feature causing the disparity in every case. Statistical evidence may support proof of both group and individual disadvantage, especially where the cause is unknown, and may trigger the burden of proof under section 136. Individual facts may rebut the inference. Once the requirements of section 19(2)(a) to (c) are established, the respondent must address objective justification under section 19(2)(d).

Employees of the Home Office brought claims of indirect race and/or age discrimination after failing a generic Core Skills Assessment required for promotion. Statistical evidence indicated lower pass rates for BME and older candidates, but the reason for the disparity was unknown. On a preliminary issue, the Employment Tribunal held that each claimant had to prove the reason for the failure and the same particular disadvantage as the group. The Employment Appeal Tribunal allowed the claimants’ appeal, holding that they need not prove why the group was disadvantaged. The Home Office appealed. The central issue was what claimants had to prove under Equality Act 2010, section 19(2)(b) and (c), before objective justification arose.

Appeal allowed. The Court of Appeal, in a judgment given by Sir Colin Rimer with which the Chancellor and Lord Justice Lewison agreed, held that the EAT had adopted an overly broad approach, although the statistical evidence could still be relevant to both group and individual disadvantage.

1. Under Equality Act 2010, section 19, a claimant must establish the matters in section 19(2)(a) to (c) before the respondent is required to justify the provision, criterion or practice. The necessary reason-why inquiry concerns why the practice disadvantages the group sharing the protected characteristic. It does not concern the employer’s motive or intention. Group disadvantage cannot be established in the abstract.
2. The individual claimant must also show that he or she suffered the same disadvantage as the group. Actual failure of a test is not itself the group disadvantage, since many members of the protected group may pass and an individual failure may have an unrelated cause. The relevant disadvantage may instead be a disproportionate likelihood of failure caused by factors associated with the protected characteristic.
3. A statistically significant report may in principle support both the group-disadvantage case under section 19(2)(b) and the personal-disadvantage case under section 19(2)(c). Where the precise cause of the disparity is unknown, the report may provide facts from which the tribunal could infer discrimination in the absence of another explanation under section 136. The report’s ultimate sufficiency remained for the Employment Tribunal to decide.
4. Personal disadvantage is part of the merits of the claim, not a separate locus standi requirement outside section 136. Individual facts may enable the employer to challenge the inference, such as where a claimant’s failure arose from an unrelated feature. If the claimant fails to prove the same disadvantage, no contravention is established and the claim must be dismissed. If sections 19(2)(a) to (c) are satisfied, the employer may seek to justify the PCP under section 19(2)(d).
5. Enderby v Frenchay Health Authority [1994] ICR 112 did not directly assist because it concerned objective justification after a prima facie case had been established, whereas the present issue concerned the earlier statutory hurdles. The guidance applied equally to the race and age claims.

The claims were to proceed before the Employment Tribunal in accordance with that guidance.

• Court of Appeal (Civil Division). In [2015] EWCA Civ 609, the appeal was allowed and general guidance was given for the claims to proceed.
• Employment Appeal Tribunal. Langstaff J allowed the claimants’ appeal from the Employment Tribunal and held that the claimants did not need to prove why the group was disadvantaged: UKEAT/0480/13/SM.
• Employment Tribunal. Employment Judge Baron determined the preliminary issue in favour of the Home Office and held that each claimant had to prove the nature of the group disadvantage, the same individual disadvantage and its effect on promotion.