Roopesh Davda v The Institute and Faculty of Actuaries

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's decision. The central legal question was whether the Employment Tribunal had correctly identified "treatment" by the Institute and Faculty of Actuaries (the IFA) under section 53 of the Equality Act 2010 and whether that treatment was because of nationality. The court held that the Employment Tribunal erred in law by treating the additional examination opportunities available to members of the Indian actuarial body (IAI) as "treatment" by the IFA and by failing to identify a correct comparator under section 23. The court also accepted that the Employment Tribunal had misapplied the principle in James v Eastleigh Borough Council when it treated membership/exemption arrangements as a true proxy for nationality.

Background and procedural posture.

The appellant, Mr Davda, a British national and long-standing student member of the IFA, claimed race discrimination under section 53 of the Equality Act 2010 on the basis that Indian nationals had more opportunities each year to pass qualifying examinations (up to four) because of the interaction between the IFA and the Indian Actuarial Institute (IAI). The Employment Tribunal upheld a direct discrimination claim and made findings that the IAI had a policy of excluding British nationals and that the IFA had recognised IAI exams by granting exemptions. The IFA successfully appealed to the Employment Appeal Tribunal (EAT), which set aside the direct discrimination finding, remitted certain indirect discrimination and section 112 issues to a different Employment Tribunal, and found the Employment Tribunal had erred in law. The case came to the Court of Appeal on the appellant's appeal against the EAT's decision.

Nature of the claim and relief sought.

• The appellant sought a finding that the IFA had directly discriminated against him because of his nationality by giving fewer opportunities to pass qualifying exams (claim 1).
• He also advanced related indirect discrimination claims, a claim relating to mutual recognition/exemptions (claim 2 and 3), and a claim that the IFA had instructed/induced the IAI not to admit British nationals (claims under sections 111/112 and claim 4).

Issues framed by the court.

• Whether the IFA's conduct in recognising IAI exams or the practical effect of the IAI's examination timetable constituted "treatment" by the IFA under section 53.
• Whether any identified treatment was "because of" nationality (direct discrimination) or a PCP giving rise to indirect discrimination.
• Whether the correct comparator had been selected and whether there was an exact correspondence (James proxy rule).
• Whether findings that the IAI excluded British nationals and that there was an agreement/understanding between the IAI and the IFA were safe and whether issues under sections 111/112 raised territorial and fairness concerns requiring remittal.

Court's reasoning and disposition.

The Court of Appeal agreed with the EAT that the Employment Tribunal had misidentified the relevant treatment. The IFA provided two sittings a year to all its student members; the fact that some candidates might gain additional opportunities by being members of the IAI arose from the IAI's own arrangements, not from the IFA's conduct. The tribunal had therefore erred in law in treating IAI arrangements or the combined effect of recognition/exemptions as treatment by the IFA under section 53. The court further held that the Employment Tribunal had not properly applied the comparator requirement in section 23 and had misapplied the James proxy principle by treating membership/exemption as an exact proxy for nationality. The Court of Appeal concluded that the EAT was right to set aside the direct discrimination finding and to remit other issues (including the safety of the factual finding concerning an agreement and section 112 issues) for further consideration by a differently constituted Employment Tribunal where necessary.

Appeal dismissed. The Court of Appeal held that the Employment Tribunal erred in law by treating additional examination opportunities (arising from the IAI's arrangements and mutual recognition) as treatment by the IFA under section 53 of the Equality Act 2010, and by misidentifying the appropriate comparator and misapplying the James proxy rule. The EAT was correct to set aside the direct discrimination finding and to remit other issues for further consideration where appropriate.

Employment Tribunal: claim of direct discrimination upheld. Employment Appeal Tribunal (EA-2019-000652-DA): allowed the IFA's appeal, set aside the ET's direct discrimination finding, remitted certain indirect discrimination and section 112 issues to a different Employment Tribunal. Court of Appeal [2024] EWCA Civ 1460: dismissed appellant's appeal and upheld EAT's decision in relation to the direct discrimination finding.