Essop and others v Home Office

The appeals raise the scope of indirect discrimination under the Equality Act 2010. In Essop, claimants challenged the requirement to pass a Core Skills Assessment (CSA) for promotion, supported by statistics showing lower pass rates for Black and Minority Ethnic and older candidates. The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal reached differing conclusions about whether claimants must prove the reason for the disparate impact. In Naeem, a prison chaplain challenged an incremental pay scheme that disadvantaged Muslim chaplains because many had shorter service; tribunals and the Court of Appeal differed on pool selection and whether the context-factor must be tied to the protected characteristic. The central issue was whether the Equality Act requires proof of the reason for group disadvantage and how disadvantage and comparison pools should be defined.

1. Overall disposition: (1) The appeal in Essop is allowed and the claims remitted to the Employment Tribunal for determination in accordance with the principles set out in this judgment. (2) The appeal in Naeem is dismissed.
2. No requirement to prove the reason for group disadvantage (p1): The court holds that section 19(2) of the Equality Act 2010 does not require a claimant to establish the reason why a PCP puts a group at a particular disadvantage. The essential legal element is a causal connection between the PCP and the particular disadvantage suffered by the group and by the individual; the reason for the statistical disparity is a factual matter which may assist proof but is not a statutory prerequisite (paras 24–36).
3. Definition and correspondence of disadvantage (p2): The court explains that the particular disadvantage may sensibly be defined either as actual failure or as a greater likelihood (statistical risk) of failure; either definition is consistent with the statute provided there is correspondence between the group disadvantage and the individual’s disadvantage. Where some group members do not actually suffer the outcome, that does not negate the group disadvantage (paras 31–36).
4. Respondent’s opportunity to negatve causation: It remains open to the respondent to show that the individual claimant did not suffer the disadvantage because of the PCP (for example, personal misconduct, lack of preparation or materially different circumstances invoking s.23(1)) (para 32).
5. Identification of the pool for comparison (p3): The appropriate comparison pool is generally the class of persons affected by the PCP. In principle the pool should consist of those who are affected either positively or negatively by the PCP, excluding persons not affected. The pool should not be artificially narrowed to exclude persons affected by the PCP (paras 40–42).
6. Justification and transitional schemes (p4): Where the PCP is part of a transitional system intended to move to a less disadvantageous arrangement, proportionality requires consideration of whether alternative, practicable means could reduce the disadvantage more quickly. If alternatives are suggested or obvious, tribunals must consider them; failure to do so may require remittal for fact-finding (paras 43–47).
7. Application to the appeals: Essop: the claimants need not prove the reason for the group disadvantage; remit for tribunal determination in accordance with the principles stated (para 36). Naeem: although the pool and disadvantage were properly identified, the Employment Tribunal’s factual conclusion that the transitional measures were proportionate was not for this Court to overturn; the appeal is dismissed and the EAT’s approach stands (paras 42–48).
8. Orders: Essop remitted to the Employment Tribunal for determination of claims in line with this judgment; Naeem appeal dismissed. Costs and any other consequential directions are not separately elaborated in this text.

• Court of Appeal: Essop — [2015] EWCA Civ 609 (Court of Appeal held claimants must show the reason for group disadvantage); Naeem — [2015] EWCA Civ 1264 (Court of Appeal dismissed the Naeem challenge).
• Employment Appeal Tribunal: Essop — Langstaff J allowed the claimants' appeal from the Employment Tribunal ([2014] UKEAT/0480/13; [2014] ICR 871).
• Employment Tribunal: Essop and Naeem initial fact-finding stages and determinations as described in the judgment (reported at first instance in the text).