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Employment Law

Legal guidance - compliance - software

09 OCT 2014

Essop and Others v Home Office (UK Border Agency) UKEAT/0480/13; [2014] IRLR 592; (2014) EMPLR 055

Edward  Benson

Partner

16 May 2014

Employment Appeal Tribunal (EAT)

Langstaff J

If it can be proved statistically that one racial group suffers a particular disadvantage because of an employer’s ‘provision criterion or practice’ (PCP), for example because it is more difficult for them to pass a test required for promotion, then all those in that racial group who suffer that disadvantage, because they fail the test, are indirectly discriminated against unless the PCP is a proportionate means of achieving a legitimate aim.

For the purposes of this case, it was assumed (without the employers admitting this) that black and minority ethnic groups (BME) candidates over the age of 35 were less likely than other racial groups to pass a core skills assessment necessary for promotion to certain grades. The indirect discrimination claims of E and others were rejected by the tribunal, even on these assumptions, because they had failed to show that the reason they had failed was anything to do with their ethnic group.

That was wrong, the EAT held. Indirect discrimination occurs where an employer imposes a provision, criterion or practice which puts members of a racial group at a disadvantage, it also puts the claimant at that disadvantage and it is not a proportionate means of achieving a legitimate aim. If the statistics showed, for whatever reason, that BME members over 35 were more likely to fail, and the claimants did fail, then the claimants have established that they suffered that disadvantage. There was no need to determine the reason for that disadvantage.

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