Institute and Faculty of Actuaries v R Davda

A qualifications body does not itself provide additional examination opportunities merely because it recognises passes in examinations set by another body. Direct discrimination requires treatment by the respondent. A criterion is direct discrimination only where it exactly corresponds with the protected characteristic and operates as its proxy.

For indirect discrimination, the comparison under section 19(2)(b) of the Equality Act 2010 is between persons sharing the claimant's characteristic and all those who do not. The tribunal must identify an evidential basis for group disadvantage. It cannot assume that a nationality group has fewer qualifying opportunities while overlooking equivalent exemption routes available through other bodies.

The claimant, a British student member of the Institute and Faculty of Actuaries, alleged race discrimination in its qualification arrangements. The Institute held examinations twice yearly and granted individual examination exemptions for equivalent examinations passed with the Indian Actuarial Institute and other bodies.

An employment tribunal upheld complaints concerning examination opportunities and alleged assistance to the Indian body in excluding British nationals. It rejected a further indirect-discrimination complaint concerning Fellowship. It awarded compensation. Both parties appealed the liability and remedy decisions.

The central issues were whether the Institute itself treated the claimant less favourably, whether membership of the Indian body was an exact proxy for nationality, whether the correct indirect-discrimination comparison had been made, and whether the alleged aiding claim had been analysed under the correct statutory provisions.

1. Appeal allowed in part; cross-appeal dismissed. The finding of direct discrimination concerning the number of examination opportunities was set aside. The EAT substituted a finding that the Institute had not directly discriminated against the claimant in that respect.

2. The Institute gave all its student members two opportunities each year to take its examinations. Opportunities to take examinations of the Indian body were treatment by that body, not treatment by the Institute. Recognition of a pass through an individual examination exemption did not alter that conclusion.

3. The case was not a James-type proxy case. Membership of the Indian body did not exactly correspond to Indian nationality. Not every Indian student member belonged to that body, and the evidence did not show that its membership was confined to Indian nationals. The tribunal had also misidentified the comparator and the relevant treatment.

4. The indirect-discrimination finding was unsafe. The relevant pool was British members of the Institute and all non-British members, not British and Indian nationals alone. The tribunal had proceeded on the false premise that British nationals could take equivalent examinations only twice yearly, without addressing exemption arrangements with other bodies or evidence of their use. That claim was remitted.

5. The tribunal had conflated sections 111 and 112 of the Equality Act 2010. Under each provision, the alleged basic contravention had to be committed by the Indian body, rather than the Institute. The section 111 claim was no longer pursued. The section 112 claim, including the factual issue of any exclusion of British nationals and issues of participation and territorial jurisdiction, was remitted.

6. The Fellowship cross-appeal failed. The tribunal's unappealed finding that the pleaded PCP was not applied was determinative. It was entitled to regard the pleaded formulation as circular and to find insufficient evidence of any comparative disadvantage.

7. The remitted claims were sent to a differently constituted tribunal. The remedy issues were also to be considered afresh if any remaining claim succeeded.

• Employment Appeal Tribunal: Liability appeal allowed in part and liability cross-appeal dismissed: [2023] EAT 63. The direct-discrimination finding was replaced with a dismissal; the indirect-discrimination and section 112 claims were remitted to a newly constituted tribunal.
• Employment Tribunal: Employment Judge Brown sitting with members, liability judgment sent on 13 May 2019 and remedy judgment sent on 5 September 2019. It upheld specified direct and indirect race-discrimination complaints, rejected the Fellowship complaint, and awarded £37,966.27.