Court of Appeal decision in Essop

The Court of Appeal allowed the Home Office's appeal and gave guidance on the interpretation of indirect discrimination under the Equality Act 2010. The court held that an indirect discrimination claimant must establish (i) a provision, criterion or practice (PCP) which puts persons who share the claimant's protected characteristic at a particular disadvantage (section 19(2)(b)) and (ii) that the claimant was personally put to that particular disadvantage (section 19(2)(c)). If those elements are proved the employer may then seek to justify the PCP under section 19(2)(d).

The court emphasised that valid statistics can be relied upon to establish group disparate impact and, in appropriate circumstances, can also support a claimant's case that he or she was personally disadvantaged; such statistical evidence may, where justified, shift the evidential burden under section 136. However statistics do not automatically relieve a claimant of the requirement to show personal disadvantage and do not dispense with the need to consider justification.

Background and parties: The claimants were Home Office employees who failed a generic Core Skills Assessment (CSA) used to determine eligibility for promotion. They alleged indirect discrimination on grounds of race (BME) and/or age (35 or older) because statistical reports (Pearn Kandola and Tyzack Associates) showed proportionately lower CSA pass rates for those groups.

Procedural history: The Employment Tribunal (Judge Baron) determined a preliminary issue after a pre-hearing review (judgment reasons sent 25 June 2013). The Employment Appeal Tribunal (Langstaff J) allowed the employees' appeal (order dated 16 May 2014). The Home Office appealed to the Court of Appeal.

Nature of the claim and relief sought: The employees sought declarations and remedies for indirect discrimination under the Equality Act 2010 (in particular sections 19 and 39), relying primarily on statistical evidence that the CSA had a disparate impact on BME and older candidates.

Issues framed: The central question was what a claimant must prove to establish indirect discrimination under section 19: whether proof of a statistically demonstrated group disadvantage together with proof that the claimant failed the PCP (the CSA) is sufficient, or whether the claimant must also identify and prove the reason why the group suffered the disadvantage and that the claimant was affected by that same reason.

Court's reasoning and conclusions: The Court held that the statute requires both a demonstration of group disadvantage (s19(2)(b)) and proof that the individual claimant was put to that same disadvantage (s19(2)(c)). The court rejected the view that statistics alone automatically discharge the individual-element requirement, but accepted that, in principle, reliable statistical evidence can be used both to establish group disadvantage and to found an inference of individual disadvantage so as to shift the evidential burden under section 136, provided there is no other explanation. Enderby was of limited relevance because it addressed justification at a later stage rather than the preliminary question what must be proved to reach justification. The court gave guidance to the Employment Tribunal that statistics may found a prima facie case but that individual factual features may still defeat a particular claimant's case; if a claimant cannot satisfy s19(2)(c) his claim must be dismissed. The Home Office's appeal was allowed to the extent of clarifying these points.

Appeal allowed. The Court held that indirect discrimination under section 19 requires proof both of a group "particular disadvantage" (s19(2)(b)) and that the claimant was personally put to that same disadvantage (s19(2)(c)). Reliable statistics can establish group disadvantage and, in appropriate cases, support an inference of individual disadvantage and shift the evidential burden under section 136, but statistics do not automatically satisfy the claimant's obligation to prove personal disadvantage; the tribunal must assess individual facts and, if necessary, consider justification under s19(2)(d).

Employment Tribunal (pre-hearing review; Judge Baron) – written reasons sent 25 June 2013; Employment Appeal Tribunal (Langstaff J) – appeal allowed (order dated 16 May 2014, UKEAT/0480/13/SM); Court of Appeal – judgment [2015] EWCA Civ 609 (22 June 2015).