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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.