Following the Supreme Court's ruling in the case of Essop v Home Office, UK Case law on indirect discrimination has finally recieved the clarity it so desperately required, in terms of the interpretation of section 19 of the Equality Act 2010. It has to be said that a great deal of the ambiguity in this area of equality law is down to the historical iterations of the concept of 'indirect discrimination, with each successive iteration taking on a slightly different nuance. The Equality Act 2010 sought to harmonise these various iterations in section 19 of the Equality Act 2010, which defines indirect discrimination as follows:

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

(2) For the purposes of subsection (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.

Much of the Equality Act 2010, is derived from our convention obligations under European Union law. For example, Article 2(2)(b) of Council Directive 2000/43/EC, otherwise known as the 'Race Directiive' defines indirect discrimination as follows:

"Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary." 

The facts of the case were as follows: Mr Essop was employed by the Home Office as an Immigration officer. In order to progress his career within the Home Office, he was required to pass a series of 'Core Skills Assessments', which he failed.

A subsequent report commissioned by the Home Office from occupational psychologists, Pearn Kandola revealed that Black and Ethnic Minority (BME) candidates and older candidates had lower pass rates than White and younger candidates. The BME pass rate was 40.3% of that for White candidates and the pass rate for candidates aged 35 or older was 37.4% of those below that age. In each case there was a 0.1% likelihood that this could have happened by mere chance.

The matter was brought by Essop and 80 others to the London South Employment Tribunal and later appealed to the Court of Appeal. The principal issue of law before the Supreme Court was whether section 19(2)(b) and (c) of the Equality Act 2010, required that the reason for the disadvantage suffered by the group be established and that the reason why the individual had suffered from that disadvantage, be the same.

In its summing up, the Supreme Court considered it instructive to carefully review the chronological iterations of the 'indirect discrimination' concept, and concluded that they all contained the following salient features:

(1) No prior iteration of the concept of 'indirect discrimination' has required that a Claimant establish why their group was placed at a disadvantage as compared to another group not sharing their protected characteristic. It is enough that it does, and the text of section 19 would support such a reading;

(2) Unlike direct discrimination, indirect discrimination is not focussed on the cause of disadvantage but rather on the outcome of a facially neutral PCP;

(3) The reasons why one group may find it harder to comply with the PCP than other groups not sharing their protected characteristic are many and various. The reasons need not be unlawful in themselves or even under the direct control of the Employer or Provider;

(4) There is no requirement that the PCP in question puts every member of the group sharing the particular characteristic at a disadvantage. Any contrary view would likely rob 'indirect discrimination' of its power to level the playing field;

(5) Indirect discrimination can be proved by statistical evidence designed to show correlation rather than causation. The underlying assumption to the way indirect discrimination tends to be proved is that showing correlation between particular variables and outcomes and its significance, suffices - requiring proof of causation would make proving indirect discrimination virtually impossible;

(6) It is always open to the Respondent, to show that the PCP is justified, i.e., that there are good reasons for requiring it.

The following arguments put forward by the Home Office in mitigation were entirely rejected by the Supreme Court:

Firstly, the argument that the only way an individual Claimant can show that they suffered the disadvantage in question is to establish the cause of that disadvantage was rejected on the grounds that this would turn on how 'disadvantage' is defined in each case.

Secondly, the argument that an undeserving Claimant may 'coat-tail' upon claims of deserving ones' was rejected on the basis that a candidate who fails an assessment for an obviously unrelated reason, i.e., because he failed to turn up at the correct test centre, is not in the same position as those who did turn up.

As a result of the Essop judgment, claimants may now establish 'disadvantage' by proving causation or by providing evidence of a statistically significant correlation. In short, Mr. Essop did not need to prove which bit of the core skills assessment test was problematic, or indeed that any individual part of it was unfair. The impact of the test on his 'protected group' was self-evident and that was all that was required.

The ramifications of the case, in terms of the need for critical reflection of employment practices is clear. Employers who are diligent in reviewing and carefully validating their people selection practices for bias and utility have nothing to fear from Essop. Those that are sloppy in going forward on the other hand, have been sent a clear message: 'Passive, uncritical acceptance of disparate impact is unacceptable, unlawful and unless addressed, may become a glaring 'achilles heel' to the organisation. 


About the author

Glanville Einstein Williams is a Diversity and Inclusion Specialist


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