10 SEP 2015
22 June 2015
Home Office (UK Border Agency) v Essop and others  EWCA Civ 609; (2015) EMPLR 048
Court of Appeal, Civil Division
The Chancellor of the High Court, Sir Terence Etherton, Lewison LJ and Sir Colin Rimer
If statistics suggest that one racial group suffers a particular disadvantage because of an employer’s ‘provision criterion or practice’ (PCP), for example because proportionately fewer from that racial group pass a test required for promotion, it does not necessarily follow that every claimant in that racial group is indirectly discriminated against. That depends on the reason why proportionately fewer people from that racial group succeed and whether that reason affected the particular claimant.
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Statistics suggested that black and minority ethnic groups (BME) candidates over the age of 35 were less likely than other racial and age 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, because they had failed to show that the reason they had failed was anything to do with their ethnic group or age.
The EAT disagreed but the tribunal’s decision was restored by the Court of Appeal. It is not enough, the Court of Appeal held, merely to show that fewer BME candidates pass the test than others. There might be all sorts of reason why someone has failed the assessment - for example, they may have turned up late or not completed all the questions. Without knowing why more candidates from those ethnic and age groups failed than those from other groups, one cannot tell whether the reason a particular candidate failed was the disadvantage suffered by the group as a whole or some other reason.
This decision has now been overturned by the Supreme Court ( UKSC 27).