Essop & Others v Home Office landmark indirect race and age discrimination claims finally settle for over £1 million three days into hearing

Thursday 7 March 2019

Nicola Braganza of Garden Court Chambers and Kate Lea of Thompsons Solicitors acted on behalf of 47 of the PCS Union claimants. Marion Scovell of Prospect Union acted on behalf of a further Prospect member.

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After 7 years of litigation, the landmark indirect race and age discrimination claims of Essop & Others v Home Office [2017] UKSC 27 finally settled last week for £1,078,000.

The claims were first issued in 2012 in the London South Employment Tribunal. 

As a result of a preliminary point first taken by the Home Office in 2013, the claims then went to the Employment Appeal Tribunal in 2014, to the Court of Appeal in 2015 and finally, to the Supreme Court in 2017 where the Home Office lost.

Back in the London South Employment Tribunal in 2019, settlement was reached after the Home Office case collapsed mid cross-examination of its main HR witness on Day three of the three-week hearing before Employment Judge Spencer.

The claims were first issued in 2012 after the Home Office required all those who sought promotion to management at HEO (Higher Executive Officer) and Grade 7 level to pass a Core Skills Assessment test, the CSA.

The CSA, an online test and originally also including a role play, tested core competencies.  There was no correlation between the test and the specific job applied for.  Many of those who sat and failed the test were already performing the role on temporary promotion. They excelled in their work and were supported by their managers in their application for promotion, but then barred from further progression because they had failed the test.   

The CSA was imposed from 2007 to 2013.  From 2008 onwards the Home Office’s own diversity data confirmed that BAME and candidates over 35 were failing the test in significantly greater numbers than their white and younger counterparts.

To date the reason for the greater fail rate remains unknown.  In 2010, a report commissioned by the Home Office confirmed the significantly higher failure rate and that there was a 0.1% likelihood that this was a coincidence. 

For years PCS and Prospect Unions challenged the test and its discriminatory impact.

It was not until 2013 and only after a previous successful Employment Tribunal claim in 2012 brought by Graham Dean, a Professional Technology Officer, that the Home Office finally abandoned the test. Nicola Braganza instructed by Marion Scovell, Prospect, represented Graham Dean too. The Employment Tribunal found that the claims for race and age indirect discrimination were made out.  The discriminatory impact of the CSA could not be justified and there was no correlation between the competencies tested and those required for the position applied for.

After the Dean judgment, in 2012 some 50 further claimants brought claims of indirect discrimination against the Home Office on the basis of the same CSA. The Home Office continued to vigorously defend the CSA.

Initially, the Home Office re-argued a preliminary point - also run and lost in the Dean case: that the claimants could only succeed if they proved the reason why they failed the test. This was initially accepted before the Employment Tribunal. The claimants succeeded on appeal before the Employment Appeal Tribunal, the Home Office appealed to the Court of Appeal and in April 2017 the Claimants eventually won. The Supreme Court rejected this argument.

After the Supreme Court Judgment, the Home Office continued to contest these claims, relying on thousands of documents and evidence from a number of occupational and educational psychologists.

Then late afternoon on Friday, 15 February 2019, the last working day before the three-week hearing was to start in London South Employment Tribunal, the Home Office disclosed to the claimants, for the first time, an internal investigation report marked “restricted management” of 2013.

The report was prepared by an equality expert commissioned by the Home Office.

This confirmed:

 “The Home Office have not conducted any validation exercise to support its confidence that the CSA provides the most effective candidates for HEO and Grade 7 level. …It is difficult to defend a position that maintains that a process that is found to produce significantly differential outcomes is the most appropriate and proportionate process to achieve the desired outcomes - if there is no comprehensive review and evaluation of these outcomes to support this position.”

The hearing started on 18 February 2019. After Day three and mid cross-examination of the Home Office’s HR key witness, the Home Office settled all claims in the sum of £1,078,000.

Nicola Braganza, who has represented the claimants in their challenge against the Home Office since 2011, said:

“These claims concerned serious systemic race and age indirect discrimination in the Home Office promotion processes dating back to before 2003.

For years, and as highlighted to the Home Office by the Unions, the  Home Office was effectively cultivating a white and under 35 management work force in the face of diversity data that BAME and older staff were being blocked in greater numbers from progressing in their careers.

To date the Home Office has offered no apology to all those impacted or any acknowledgment of wrong doing.

How can the Home Office demonstrate a genuine commitment to combating inequality and promoting diversity in its workplace, without recognising past discrimination on this scale?”

The settlement of £1,078,000 was without admission of liability.

This case has been reported in the Guardian.

Nicola Braganza is a member of the Garden Court Chambers Employment Law Team.

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