Tell Me the Reason Why

whyIt is not often there is an appeal judgement of genuine assistance to employees, but the EAT’s decision last year in Essop v Home Office is one such case in which my union, PCS, assisted the claimants in appealing.

The background is that the Respondent had a Provision, Criterion or Practice that an employee wishing to be promoted within the organisation must pass a Skills Assessment. Anyone who failed this assessment was barred from proceeding to the next stage of the recruitment process (i.e., interview). There was statistical evidence (that does not appear to be disputed) that BME candidates aged over 35 years of age were more likely to fail the assessment and, therefore, be excluded from promotion opportunities. The claimed disadvantage then was not just the failure of the test but the disadvantage in passing the test (which, in theory, would suggest a BME applicant aged over 35 who passed the test could still be at the particular disadvantage).

The claimants lodged employment tribunal proceedings alleging indirect discrimination on race and age grounds. At a preliminary hearing the disparate performance in  skills assessments was accepted but the employment judge ordered that the “[i]t will be necessary for each of the Claimants to prove the reason for his/her failing of the CSA test.”

Indirect discrimination occurs when

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of sub-section (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

On the basis of this legislative language one can drill down the basic components of a indirect discrimination claim:

  1. The employer must apply a provision, criterion or practice (PCP); and
  2. That PCP must place (or would place) a particular protected characteristic (e.g., disabled staff) at a particular disadvantage; and
  3. The claimant must share that characteristic (e.g., must be disabled); and
  4. The complained of conduct cannot be a proportionate means of achieving a legitimate aim.

The central issue before the EAT is summarised succinctly in paragraph 12 of the judgement:

12. EJ Baron found that the “particular disadvantage” within Section 19 which had been suffered in the present case was that there was an increased likelihood of an older BME candidate failing the CSA test. He accepted the Respondent’s case that it was not simply sufficient for the purposes of section 19(2)(b) and/or (c) to identify that this was the effect: he held the statute required the Claimants to prove on the balance of probabilities what was the reason for the lower pass rate. The Claimants disputed that they needed to show this.

The EAT ruled that in that direction the ET had made an error of law. In making the direction that he did the employment judge had gone beyond the statutory language.  The claimant had (by the Respondent’s concession) met the first three of the above requirements and all that was left was for the the employment tribunal to judge whether the Respondent’s conduct was a proportionate means of achieving a legitimate aim.

Had it been allowed to go unchallenged the approach to indirect discrimination the first tier tribunal took would have significantly impeded the ability of claimants to challenge the discriminatory effect of employer practices that evidence showed to be discriminatory but with no clear rationale why. That the EAT has put paid to those arguments (for the time being at least) is good news for claimants. The case however has been appealed to the Court of Appeal.

Cases Cited: Essop v Home Office [2014] UKEAT 0480_13_1605

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