PCS wins landmark Supreme Court ruling (April 2017) on evidence required to prove indirect discrimination
The judgement relates to an appeal by the Home Office against an Employment Appeal Tribunal (EAT) ruling that the claimants had suffered indirect race and/or age discrimination under Section 19 of the Equality Act 2010. The ruling by the EAT and subsequently supported by the Supreme Court, gives important guidance on how claims for indirect discrimination should be approached by any Employment Tribunal. This ruling could have far reaching consequences for HR operational policy within DCLG.
Background of the Essop v Home Office case
Mr Essop was employed by the Home Office as an immigration officer. In order to progress through the ranks of that profession, he was required to pass a series of assessments which he failed. Non-white candidates, and candidates over 35, like Mr Essop, were shown to pass these assessments at 40% and 37% of the rate of candidates without those characteristics respectively, but no one knew what the cause of this disparity was.
The point of law under S19 of the Equality Act
The question was whether this amounted to indirect discrimination under s19 of the Equality Act 2010 (EqA 2010). In the employment context, indirect discrimination under the EqA 2010 requires a claimant to prove that they are put at a disadvantage by a facially neutral provision, practice or criterion (PCP) which their employer applies, and which tends to disadvantage others with whom the claimant shares a protected characteristic (such as age and race). If this can be shown, it falls to the employer to prove that the PCP is justified as a proportionate means of achieving a legitimate aim.
The question for the Supreme Court
The tricky issue for the Supreme Court was what should be done in Mr Essop’s case, where no one could be sure why non-white and older candidates did so much worse in the assessment. Could Mr Essop really prove that the PCP had put him at a disadvantage if he could not explain why it had?
The Supreme Court gave the judgment in his favour, identifying several salient aspects of the concept of indirect discrimination which pointed to the conclusion that a failure to prove the cause in this sense was no bar to successfully suing an employer.
The reasons for the verdict
- It held that no prior interpretation of the concept of indirect discrimination has required a claimant to show why their group is put at a disadvantage as compared to another group not sharing their protected characteristic.
- Unlike direct discrimination, indirect discrimination is not focused on the cause of disadvantage, it is focused on the outcome of a facially neutral PCP.
- The reasons why a group may suffer disadvantage are many and various.
- There is no need that every member of a group sharing the protected characteristic be in fact disadvantaged by the PCP. Any contrary view would rob indirect discrimination of its power to “level the playing field”.
- Indirect discrimination is often proved by statistics designed to show correlation rather than causation. The underlying assumption to the way indirect discrimination tends to be proved is that correlation suffices – requiring proof of causation would go against this approach, and would make proving indirect discrimination virtually impossible.
- An employer can justify indirect discrimination where they have a good reason for their PCP.
The arguments put forward by the Home Office that were rejected
- The argument that the only way an individual claimant can show they suffered the disadvantage in question is to point to the cause of that disadvantage was rejected on the basis that this will turn on how ‘disadvantage’ is defined in each case. In Mr Essop’s case, for example, the disadvantage was failure of the test – which could be easily proved.
- The argument that undeserving claimants may ‘coat-tail upon the claims of deserving ones’ was rejected on the basis that a candidate who fails an assessment for an obviously unrelated reason – because they show up at the wrong test centre, for example – is not in the same position as those who turn up at the right one. The correct comparator in equality law is always the one which is the same in every respect to the claimant (or group), except for the protected characteristic.
The judgement’s major effect will concern proof in indirect discrimination claims: claimants may prove that their disadvantage stems from the PCP by showing a causal link, but they may also prove this connection from evidence of mere correlation. Mr Essop did not therefore need to prove which bit of the test was problematic or that any individual part of it was unfair: the impact of the test on two protected groups was self-evident, and that sufficed.
In contrast with claims for direct discrimination, the concept of indirect discrimination is intended to apply to what appear to be neutral practices that in practice cause disadvantage to a particular group. Once this disadvantage is shown (often by the use of statistical evidence), it is open to the employer to objectively justify the PCP in question.
This avoids placing undue formalistic burdens of proof on claimants, and is sensitive to the notoriously difficult time which claimants have proving discrimination. It shows that the action of employers in passively and uncritically accepting discriminatory impact is unacceptable and unlawful in the modern workplace.
Implications for DCLG
Any PCP currently operated by the Department that shows a disparity of outcomes affecting any of the nine protected groups: Age; Disability; Gender Re-assignment; Marriage or Civil Partnership; Pregnancy or Maternity; Race; Religion or Belief; Sex or Sexual Orientation could potentially lead to a claim of indirect discrimination under section 19 of the EqA. With swathes of the Department’s key staff policies continuously leading to unequal outcomes for certain protected groups, including but not limited to; performance management; staff bonuses; attendance management and promotion, it is now time for the Department to take its obligations towards equality seriously and implement considerable remedial actions to remove discrimination from all of its policies.