Labour & European Law Review Weekly Issue 432 12 August 2015
Multiple claimants in indirect discrimination claims have to prove that they are members of a particular disadvantaged group in order to succeed. However, in Home Office (UK Border Agency) v Essop, the Court of Appeal has held that they also have to show how they were disadvantaged as individuals by the application of a specific provision, criterion or practice to the relevant characteristic.
The claimants’ union, PCS, instructed Thompsons to act on their behalf.
In order to become eligible for promotion, the Home Office required all staff to pass a generic test known as the Core Skills Assessment (CSA).
Based on two reports carried out in 2010 and 2011 which found that black and minority ethnic (BME) candidates and candidates over the age of 35 had a proportionately lower CSA pass rate than white and younger candidates, a number of civil servants lodged test claims for indirect discrimination on the grounds of race and age contrary to section 19 of the Equality Act 2010.
Section 19 states that there is indirect discrimination if an employer applies a “provision, criterion or practice” (PCP) to a relevant characteristic which puts workers who share that characteristic at a particular disadvantage compared with those who do not.
Tribunal and EAT decision
Although the tribunal agreed that BME and older candidates faced a particular disadvantage as a result of the PCP imposed by the employer, the judge said that each civil servant also had to prove the reason why they, individually, failed the test in order to show that they had actually suffered from that “particular disadvantage”.
The EAT overturned that decision. As the wording of section 19 did not require members of a disadvantaged group to show why they had suffered the disadvantage (in addition to proving that they had), the claimants could not be required to prove something that the law did not require.
Decision of Court of Appeal
The Court of Appeal, however, disagreed with the EAT. Although section 19 did not literally require the claimants to show why they had suffered the disadvantage, it was conceptually impossible to prove a group disadvantage without also showing why the disadvantage arose. “Group disadvantage cannot be proved in the abstract. Its proof necessarily requires a demonstration of why the comparative exercise inherent in section  results in the claimed disadvantage”.
In this case, the claimants had shown, statistically, that the group was disproportionately more likely to fail the CSA than their comparators who did not share the protected characteristics. However, just like any other discrimination claim, each claimant also had to discharge the section 19 burden. By relying on the 2010 statistical report, they had shown that they belonged to a group whose members were, by reason of one or more factors relating to their shared protected characteristic, disproportionately more likely than their comparators to fail the CSA. It did not follow, however, that each claimant's failure was the consequence of any of those factors. It was possible - even probable - that it was, but equally it could have been a result of something else.
In order to prove that they were personally disadvantaged by the PCP in the same way as the group as a whole, the Court of Appeal held that each claimant could, in principle, rely on the 2010 report to prove facts from which the tribunal could decide whether or not the discrimination claim was proved. It would then be up to the Home Office to disprove it.
An application has been made to the Supreme Court seeking permission to appeal the Court of Appeal’s judgment.