Essop v Home Office (UK Border Agency) [2014] EqLR 377[i]

Employment Appeal Tribunal

16 May 2014

Race Discrimination: Indirect

Mr Essop and others were a group of BME Civil Servants and in order for them to get promoted to certain higher-grade posts within the Civil Service, it was a requirement for them, as well as other Civil Servants to pass a core skills assessment (CSA). However, they claimed that BME candidates over the age of 35 were systematically less likely than non-BME and younger candidates to pass the CSA and alleged their employer had unlawfully indirectly discriminated against them contrary to Section 19 of the Equality Act 2010.

When Essop and the other claimants initially presented their claims of indirect race discrimination and indirect age discrimination to the Employment Tribunal at a pre-hearing review, the judge held that for them to be successful in their claim, each claimant had to show two things:

1. That the systematic disadvantage was true of the group of which the claimant was a part (an older BME candidate)
2. And why the claimant, on a balance of probabilities, failed the assessment

It was acknowledged at the preliminary hearing that there was indeed a statistically significant difference in the pass rate of older candidates with a BME background and younger, non-BME candidates taking the CSA. Both respondent and claimants also accepted that within the meaning of Section 19 of the Equality Act 2010, the test was a provision, criterion or practice – PCP.

Two other things were also assumed – firstly, that there were no reasons specific to any of the claimant candidates that could explain the disparities in CSA performance between the two groups (older BME and younger non-BME) and secondly, not all older BME candidates who sat the CSA failed.

The claimants disagreed that they needed to show why they obtained a lower pass rate and the judge held that the “particular disadvantage” which the claimants suffered - which was the lower pass rate - would have to be followed by the claimants showing that he or she had actually been put to that disadvantage and was not satisfied solely by their failure of the CSA.

The claimants appealed to the EAT which focused on the words “at that disadvantage” as provided by Section 19 Sub-Section (2)(C).  With regard to this, the claimants contended that it would be impossible for them to prove the reason they failed the assessment and this was information privy only to the respondents who, the claimants further argued, may not be able to appreciate the older BME failure rate. The fact that there was such an adverse effect on the claimants was all that was necessary, argued the claimants.

The EAT held that the judge at the preliminary hearing erred in directing that for the claimants to establish indirect discrimination contrary to Section 19 of the Equality Act 2010, each of them had to prove the reason why he or she had been subjected to a disadvantage. The judge said that members of a disadvantaged group are not required by Section 19 to show why they had suffered the disadvantage in addition to the fact they had done so and asking them to satisfy such a requirement was not provided for by statute.

The judge at the preliminary hearing had also erred in his reasoning that the mere fact of failure of the assessment was not sufficient to establish whether the claimant had been put at that disadvantage. The greater risk of, or actual failure of the CSA, was the disadvantage to which the claimants were disproportionately exposed to and had suffered precisely that disadvantage.

The second point the EAT dealt with relates to the implementation of EU law with regard to how domestic legislation must be interpreted to conform, so far as is possible, with Eu law. Thus, the judge at the EAT referred to the sex discrimination case of Enderby v Frenchay Health Authority [1994] ICR 112, ECJ, inferring two crucial points to the present case: that as submitted by counsel for the claimants in Essop, “an employer’s practice may not be transparent, such that discrimination may be disguised, often to the employer itself – and relevant and significant statistics may uncloak it; …that where such statistics demonstrate disparate outcomes as between two groups, one with a protected characteristic and one without, that sufficient proof without more to call the for the employer to show that what has caused the difference is objectively justified, and is not itself tainted by the relevant discrimination.” Using the purposive approach to EU law, the EAT extrapolates that the relevant sections of the Equality Act 2010 should be construed in such a manner that promotes the elimination of the adverse effects of “disguised” discrimination. The pre-hearing judge’s requirement that each claimant prove the reason for failing the CSA test failed to advance the elimination of such discrimination and allows the disproportionate effect to persist.

The final point made by the EAT related to the respondent’s reference to the hypothetical “tail coater” being inadvertently disadvantaged by the application of the PCP (which stands for provision, criterion or practice). It was the respondent’s argument that unless a claimant is made to prove the reason for suffering the particular disadvantage, any person from a protected group that performed proportionately less well, who failed the test, would be able to show that they had been indirectly discriminated against without there being any link between their failure and protected characteristics. Thus, the unmeritorious claimant would be allowed to hold on to the tail coats of the meritorious.

The judge at the EAT held that for a claimant to succeed in establishing indirect discrimination it was essential but not sufficient that he had suffered a particular disadvantage as provided for by Section 19 Sub-Section (2)(b) of the Equality Act 2010. The employer was allowed to show that the PCP producing the disadvantage was objectively justified – meaning that it was a proportionate method of producing a legitimate aim.