Landmark Supreme Court victory on indirect discrimination

Wednesday 5 April 2017

The Supreme Court has today ruled that in accordance with section 19 of the Equality Act 2010 claimants do not have to show the reason why they were disadvantaged to progress their claims of indirect discrimination. This decision (Essop and others (Apellants) v Home Office (UK Border Agency) (Respondent) overturned the earlier decision of the Court of Appeal in June 2015.

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Nicola Braganza of the Garden Court employment, discrimination and public law teams represented all 49 appellants led by Karon Monaghan QC of Matrix Chambers and instructed by Kate Lea of Thompson Solicitors on behalf of the Public and Commercial Services Union.

Watch Lady Hale's summary of the judgment in the Supreme Court:

The Supreme Court held unanimously in a judgment delivered by Lady Hale that workers do not need to prove the ‘reason why’ the practice, criterion, provision or “PCP” 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 civil servants who brought claims of indirect race and/or 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.  The BME pass rate was 40.3% of that of white candidates. The pass rate of candidates aged 35 or older was 37.4% of that of those below that age.  There was a 0.1% likelihood that this had happened by chance.  No-one knows the reason why BME and older candidates failed in significantly greater number than the white or younger 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 then President of the Employment Appeal Tribunal Langstaff J disagreed with the Employment Tribunal 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 section 19 of the Equality Act 2010.

The employee appellants successfully challenged the decisions of the Employment Tribunal and the Court of Appeal.  By a unanimous judgement the Supreme Court held that the Tribunal and Court of Appeal were wrong: it was ‘not necessary [for the workers] to establish the reason for the particular disadvantage.’  The Supreme Court has now clarified the application of section 19 of the Equality Act 2010 in a landmark judgment, which will impact on all future claims of indirect discrimination.



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