Essop v Home Office (UK Border Agency)

For indirect discrimination under section 19 of the Equality Act 2010, a claimant need not prove the reason why an apparently neutral provision, criterion or practice caused the individual disadvantage. Where reliable evidence shows that a protected group suffers a particular disadvantage and the claimant has suffered that same disadvantage, section 19(2)(c) is satisfied.

This is so even where the causal mechanism producing the disparate outcome is unknown. The employer may still establish objective justification. Evidence that an individual suffered the outcome for a personal reason, rather than the group disadvantage, may affect the inference and the remedy, but it does not impose a preliminary requirement to identify the cause of failure.

The appellants were black and minority ethnic civil servants aged over 35. In test proceedings, it was assumed that candidates in that group were statistically less likely than younger non-BME candidates to pass the Core Skills Assessment required for promotion to HEO grade and above.

At a pre-hearing review, the Employment Judge held that each claimant had to prove why they personally failed the assessment before establishing indirect discrimination. The appeal concerned whether the words “at that disadvantage” in section 19(2)(c) of the Equality Act 2010 required proof of that individual causal reason.

1. Appeal allowed. The Employment Judge erred in requiring each claimant to prove the reason for failing the Core Skills Assessment. Section 19 does not expressly impose that additional requirement.

2. The relevant group disadvantage was the increased risk, or actual occurrence, of failing the assessment. A claimant who failed the assessment suffered precisely that disadvantage. Section 19(2)(c) requires proof that the claimant was put at the group disadvantage identified under section 19(2)(b), not proof of the mechanism by which the provision, criterion or practice produced it.

3. The provision had to be read, so far as possible, consistently with EU law and its purpose of eliminating disguised discrimination. Reliable statistics may demonstrate disparate outcomes even where neither employer nor employee can identify the feature of an ostensibly neutral process that causes them. Requiring proof of the individual cause in that situation would frustrate the statutory purpose and leave the disproportionate effect unchecked.

4. The conclusion did not permit automatic recovery by any group member who failed. The employer retained the defence that the provision, criterion or practice was a proportionate means of achieving a legitimate aim. Material showing that an individual failed for a personal reason, rather than a reason affecting the group generally, could displace the ordinary inference and could reduce compensation or make a declaration the appropriate remedy.

5. The claims were remitted to the Employment Tribunal to proceed in accordance with this judgment. No direction was made that they be heard by the same or a differently constituted tribunal.

• Employment Appeal Tribunal: Allowed the appeal and remitted the claims to the Employment Tribunal to proceed in accordance with its judgment.
• Employment Tribunal, London South: At a pre-hearing review, Employment Judge Baron held that each claimant had to prove the reason for failing the Core Skills Assessment.