Taylor v Commissioners of Inland Revenue [1999]
IDS Brief 649 Nov 2000

In Indirect discrimination claims, the key is often to identify the right pool for comparison. The Applicant has to prove that the proportion of women (in a sex discrimination claim) who can comply with a condition or requirement is significantly less than the proportion of men who can comply. What happens when there are a number of separate requirements, each of which has to be satisfied and the Applicant can comply with all bar one of the requirements?

In Taylor v Commissioners of Inland Revenue, the Employment Appeal Tribunal confirms that the correct pool in that situation encompasses all workers who can comply with the same requirements as the Applicant.

Ms Taylor was a Valuation Executive. Under her employer's promotion scheme, all executives were eligible for automatic promotion if they:

  1.  had at lest three years' valuation officer experience; 
  2.  gained appropriate professional membership by the end of 1993; and 
  3.  received a performance score of two or above. Ms Taylor complied with the first and second but not the third.

In assessing the pool for comparative purposes, the Employment Tribunal treated the three criteria as indivisible. This meant that the appropriate pool comprised all executives to whom the scheme applied. The proportion of women who could comply with all three criteria was not significantly different to the proportion of men who could not comply with all three (but who may have been able to comply with one or two). In any event, according to the Tribunal, any disparate impact would be justified.

The Employment Appeal Tribunal allowed Ms Taylor's appeal. The correct pool was all those who could comply with requirements (1) and (2). On the facts, a significantly smaller proportion of women who could comply with (1) and (2) could also comply with (3) than was the case for men who could comply with (1) and (2). The EAT also found that the Tribunal had failed to carry out the necessary balancing exercise between the interests of the employer and the worker and had taken into account irrelevant factors when determining the issue of justification.

This is plainly right. Employers should not be allowed to hide discriminatory criteria in a matrix of requirements which, overall, may disclose no disparate impact.