Home Office (UK Border Agency) v Essop & Ors

A claimant alleging indirect discrimination must identify the particular disadvantage the PCP causes to the group and show that they personally suffered that same disadvantage, but reliable statistical evidence can establish group disparate impact and, in principle, suffice to support the individual inference so as to shift the burden of proof under section 136 of the Equality Act 2010.

(1) The appeal is allowed and the Employment Tribunal and Employment Appeal Tribunal decisions are to be read in the light of the following guidance. (2) Section 19 of the Equality Act 2010 requires proof of (a) a PCP, (b) that it puts the relevant group at a "particular disadvantage" compared with others and (c) that the claimant is put at that disadvantage. The statutory language embodies a "why" question as to why the PCP disadvantages the group; that question is conceptually integral to proving group disadvantage and cannot be treated as wholly absent from the inquiry (paras [57]–[63]). (3) A statistical report capable of proving disparate impact may, in principle, establish the group disadvantage under s.19(2)(b) (para [63]–[64]). (4) Where neither party can explain the cause of the disparate impact, it is in principle open to a claimant to rely upon significant and reliable statistics to support an inference that he was personally disadvantaged in the same way as the group, thereby engaging the evidential shift in s.136 and obliging the respondent to provide an explanation or justification (paras [64]–[66]). (5) That does not mean an automatic entitlement to succeed: the respondent may challenge particular claimant cases at the substantive hearing and, if a tribunal finds a claimant has not been put to the same disadvantage, the claim fails and no remedy is available (paras [67]–[69]). (6) If the claimant proves s.19(2)(a)–(c), the respondent may then rely on s.19(2)(d) to justify the PCP as a proportionate means of achieving a legitimate aim (para [69]). (7) The Court provided guidance to the ET on the approach to be adopted when deciding the substantive claims but did not decide the evidential sufficiency of the statistical reports in issue (paras [63]–[66]).