When claiming indirect race discrimination, claimants have to show that they suffered a disadvantage compared to someone without that characteristic. In Louis v Network Homes Ltd, the EAT held that Mr Louis could not claim discrimination for a disadvantage on the basis that he had not been offered a specific advantage available only to people from a black and minority ethnic (BAME) background.
Basic facts
Network Homes had a policy of applying certain positive actions to address the low numbers of BAME employees in senior positions. For instance, the so-called “Rooney Rule” required the organisation to shortlist any applicant from a BAME background who met the minimum criteria for a senior management team role.
Mr Louis, a fixed term BAME employee, argued that the organisation had a practice of not applying its redundancy procedure to fixed term employees. When he was dismissed, he had, therefore, been put at a disadvantage compared to a permanent BAME employee at risk of redundancy, because he could not benefit from the Rooney Rule or any of the other positive actions on offer.
He lodged a claim alleging that the company had indirectly discriminated against him under section 19 of the Equality Act 2010 on the basis of race when it applied the provision, criterion or practice (PCP) of not following its redundancy procedure when dismissing him.
Relevant law
Section 19 states (among other things) that it is discrimination for an employer to apply a PCP if it put a person with the protected characteristic of race “at a particular disadvantage” compared to someone without that characteristic and the employer cannot show it was “a proportionate means of achieving a legitimate aim”.
Tribunal decision
The judge held that the facts as presented did not support a claim of indirect race discrimination. However, rather than asking Mr Louis to amend his claim to one of less favourable treatment on the basis of being a fixed term employee, the judge reformulated it himself to that effect.
Mr Louis appealed, arguing that the judge had failed to apply the provisions of section 19 to his claim. Firstly, he had ignored the fact that BAME employees were not proportionately represented at a senior level and secondly, that they were more likely to be fixed term employees.
EAT decision
The EAT agreed with Mr Louis that the tribunal judge was wrong to effectively strike out the claim without giving him notice, particularly as it was a complex point of law, and he was acting for himself.
In terms of whether Mr Louis had been discriminated against at a substantive level, however, the EAT held firstly that as the failure to apply a redundancy process to a fixed term employee would apply to all fixed term employees, everyone would suffer the disadvantage. Although the positive actions were only offered to BAME employees, those without BAME characteristics would find themselves in “exactly the same category” as those with them. If the pool was limited to only BAME individuals, as Mr Louis had argued, there would still be no indirect discrimination because everyone in the pool would be affected.
Secondly, the EAT held that as the positive actions were an advantage being given to a particular group that met certain criteria, they could not be converted to a disadvantage because they were not an opportunity given to people who did not meet the relevant criteria. In other words, Mr Louis could not claim discrimination for a disadvantage simply because he had not been given a certain advantage.
The EAT, therefore, dismissed the appeal.