Roopesh Davda v The Institute and Faculty of Actuaries

For direct discrimination by a qualifications body, the relevant treatment must be treatment by that body within its own arrangements for deciding whom to qualify. Another organisation’s examination timetable, and the additional opportunities it creates, are not treatment by the qualifications body where that body has no control over them. Direct discrimination also requires an exact correspondence between the treatment criterion and the protected characteristic. Membership of another body is not a proxy for nationality where neither all nationals nor all members fall within the relevant group. A comparator must have no material difference in circumstances. The appeal was dismissed.

A British national seeking actuarial qualifications claimed that the IFA directly discriminated against him because Indian nationals could sit examinations set by the IAI as well as IFA examinations, giving them potentially four opportunities each year. The Employment Tribunal upheld the direct discrimination claim and made related findings concerning indirect discrimination and the IAI’s membership policy.

The Employment Appeal Tribunal allowed the IFA’s appeal, substituted a finding of no direct discrimination, remitted the indirect discrimination and section 112 claims, and set aside the relevant factual finding about an agreement between the IFA and IAI. The central issue before the Court of Appeal was whether the IFA had subjected the appellant to less favourable treatment within section 53 of the Equality Act 2010.

Appeal dismissed. Lady Justice Laing gave the leading judgment, with Lewis LJ and Moylan LJ agreeing.

1. Under section 53(1)(a) of the Equality Act 2010, the relevant treatment must be treatment by the qualifications body in arrangements made by it for deciding upon whom to confer a relevant qualification. The IFA gave all its student members, regardless of nationality, two opportunities each year to sit its examinations. The IAI’s separate examination timetable was outside the IFA’s control. The additional opportunities created by that timetable were therefore treatment by the IAI, not treatment by the IFA.
2. That conclusion disposed of the direct discrimination claim. The IFA had not treated the appellant less favourably in arrangements falling within section 53. The EAT was right to set aside the finding of direct discrimination and substitute a finding that the IFA had not directly discriminated against him.
3. Alternatively, the ET had wrongly applied James v Eastleigh Borough Council [1990] 2 AC 751. In James, pensionable age was an inherently discriminatory criterion and a true proxy for sex. Even assuming that the relevant treatment here was the opportunity to sit four examinations a year, IAI membership was not an exact proxy for nationality. It could not be assumed that all Indian nationals were IAI members, or that all IAI members were Indian nationals.
4. Although unnecessary to the result, the court also accepted that the ET had been wrong to allow the appellant to choose his comparator. Section 23(1) required no material difference between the circumstances. An Indian national who was also an IAI member was materially different from the appellant, so that comparison could not clarify whether any difference was because of race.
5. The court considered ground 4 not well founded. Having set aside the ET’s judgment on the section 112 claim, the EAT was entitled to remit that claim afresh without preserving the challenged factual findings.

• Court of Appeal (Civil Division): Appeal dismissed. The EAT was correct to substitute a finding that there had been no direct discrimination and to remit the related claims.
• Employment Appeal Tribunal: Appeal by the IFA allowed. The direct discrimination finding was set aside and a finding of no direct discrimination substituted. The indirect discrimination and section 112 claims were remitted to a different tribunal. The cross-appeal was dismissed.
• Employment Tribunal: The direct discrimination claim was upheld. Alternative findings were made on indirect discrimination and the claim concerning instruction, inducement or assistance of the IAI.