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No requirement to show why PCP causes a disadvantage

The Supreme Court rules that in indirect discrimination claims there is no requirement to explain why a provision, criteria or practice puts one group at a disadvantage when compared with others.
Justice

Under S.19 of the Equality Act 2010, indirect discrimination occurs when an employer applies a provision, criterion or practice (‘PCP’) to everyone but it puts people with a protected characteristic at a particular disadvantage when compared with others and puts an individual at that disadvantage, unless the employer can show that the PCP is a proportionate means of achieving a legitimate aim.

In Essop and others (Appellants) v Home Office (UK Border Agency), Essop, and 48 colleagues needed to pass a Core Skills Assessment (CSA) to obtain promotion. A 2010 report established that Black and Minority Ethnic (BME) candidates, and older candidates, had lower pass rates than white and younger candidates, but did not identify why. Essop and his colleagues alleged that the requirement to pass the CSA constituted indirect discrimination on the grounds of race or age. The Home Office argued that S.19(2)(b) EA 2010 required the claimants to prove the reason for the lower pass rate. The Court of Appeal agreed, upholding the decision of the Employment Tribunal.

The Supreme Court upheld Essop’s appeal and remitted the case to the employment tribunal to be determined in accordance with its guidance on the test for indirect discrimination. The key points are as follows:

(a) There has never been any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others. It is enough that it does.
(b) It is commonplace for the particular disadvantage to be established on the basis of statistical evidence.
(c) Indirect discrimination does not require a causal link between the characteristic and the treatment but the PCP must be the cause of the particular disadvantage suffered.
(d) The reason for the disadvantage may not be in itself unlawful but both the PCP and the reason for the disadvantage must be the causes of the disadvantage.
(e) The PCP need not put every member of the group sharing the protected characteristic at a disadvantage. Here, it was irrelevant that some BME or older candidates could pass the CSA: the group was at a disadvantage because the proportion who could pass was smaller than the proportion of white or younger candidates.
(f) It is always open to an employer to show that the PCP is justified. There may well be a good reason for it. A wise employer will, however, try to see if PCPs which do have a disparate impact can be modified to remove that impact while achieving the desired result.
(g) The disadvantage suffered by the individual must correspond with the disadvantage suffered by the group, so it is open to the employer to show that the connecting link between the PCP and the individual disadvantage is absent.

In the context of this case, the Court provided an example of (g): the employer could show that a candidate who fails the CSA because he did not prepare or did not turn up for or finish the CSA has not suffered harm as a result of the PCP in question.


This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information.  Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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