Civil service employees can now make a claim for indirect discrimination against their employer without having to prove the ‘reason why’
The Supreme Court has today (05.04.17) ruled that civil service employees do not have to show the reason why they were disadvantaged to progress their claims of indirect discrimination against their employer, the Home Office. This decision overturned the earlier decision of the Court of Appeal in June 2015.
The landmark case, brought by Thompsons on behalf of the Public and Commercial Services Union (PCS) concluded that workers do not need to prove the ‘reason why’ the practice in question puts, or would, put the affected group at a particular disadvantage.
The case, which began in 2012, was brought on behalf of 49 black, Asian, and minority ethnic (BME) civil servants who brought claims of indirect race and age discrimination against the Home Office. In order to be eligible for promotion to certain higher grades, candidates had to pass the Core Skills Assessment (‘the CSA’), designed to test certain competencies. Each of the Claimants had failed the CSA.
A report commissioned by the Home Office concluded that the CSA had a differential impact in relation to certain protected groups. Specifically, that white and younger candidates had a higher selection rate than BME and older candidates.
In June 2013 the Employment Tribunal determined, as a preliminary issue, that the Claimants needed to demonstrate both the reason for the lower pass rate in the relevant protected group and that the reason explained their own failure to pass the CSA. The Employment Appeal Tribunal disagreed but the Court of Appeal favoured the original approach of the Employment Tribunal, leaving the Supreme Court to determine the correct approach to indirect discrimination under the Equality Act 2010.
With the support of their union, PCS and the backing of the Equality and Human Rights Committee (EHRC), the employees were able to successfully challenge the findings of the Employment Tribunal and Court of Appeal. By a unanimous judgement, the Supreme Court said that it was ‘not necessary [for the workers] to establish the reason for the particular disadvantage.’
General Secretary of the PCS, Mark Serwotka, said: "This is a major win, not just for this group of civil servants, but for workers challenging discrimination in the workplace.
“We knew these procedures were flawed, and the Home Office can no longer deny the fact that staff shouldn’t have to prove how and why they are being discriminated against.”
Kate Lea, employment rights solicitor at Thompsons, added: “Indirect discrimination aims to achieve equality of results. It deals with hidden forms of discrimination which are not easily identified. This decision will help workers challenge disguised discrimination in the workplace.”