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Employment Law

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Veale Wasborough Vizards , 07 JUL 2015

Indirect discrimination - what does an individual need to prove?

Indirect discrimination - what does an individual need to prove?
Jenny Marley
Solicitor, Veale Wasbrough Vizards

The Court of Appeal (CA) has held that when bringing a claim of indirect discrimination, an individual must prove personal disadvantage, as well as group disadvantage caused by the provision, criterion or practice (PCP).

The case of Home Office (UK Border Agency) v Essop and others involved Mr Essop (the lead claimant) and other claimants worked for the Home Office. The Home Office requires all employees to pass a Core Skills Assessment (CSA) in order to become eligible for promotion.

The claimants, who were all from black and minority ethnic (BME) backgrounds and over 35, failed the CSA. They subsequently brought indirect race and age discrimination claims against the Home Office. Each claimant's case was that the requirement to pass the CSA is a PCP that disadvantaged them and resulted in indirect discrimination. This argument was based on statistical evidence which showed BME candidates over the age of 35 were significantly less likely to pass the CSA.

The Employment Tribunal (ET) held that it was not enough to show there had been a group disadvantage (in this case, the increased likelihood of a failing the CSA) and that the relevant claimant was part of that group and had failed the CSA. Instead it was necessary for each of the individuals to prove why they had failed the CSA and to demonstrate a causal link between the group disadvantage and their personal disadvantage.

The Employment Appeal Tribunal (EAT), on appeal by the claimants, subsequently overturned this decision.

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The Home Office appealed and the CA found in its favour. The CA stated that in a claim of indirect discrimination an employee must show (1) why the PCP had disadvantaged he group and (2) why the employee had suffered a disadvantage.

In providing guidance to the substantive tribunal that will re-hear this case, the CA stated "it is in principle capable of being argued by each claimant that the report will prove his case sufficiently to the point at which there will be a burden of disproof on the Home Office".

Best practice

This decision shows that employees cannot just rely on being part of a disadvantaged group in order to be successful in a claim for indirect discrimination. However, there may be cases where the statistical evidence is so strong that employers will need to be prepared to defend a claim with evidence that the disadvantage suffered by the individual claimant is for a reason unconnected with their protected characteristic(s). 

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