Indirect discrimination: no need to show why claimant disadvantaged

An employee claiming that the civil service Cores Skill Assessment test was indirectly discriminatory on grounds of race and age did not have to how why the test disadvantaged BME candidates and those over the age of 35, nor why it disadvantaged him. He just had to show that it did.

Speedread

An employee claiming that the civil service Cores Skill Assessment test was indirectly discriminatory on grounds of race and age did not have to how why the test disadvantaged BME candidates and those over the age of 35, nor why it disadvantaged him. In indirect discrimination claims, the legislation simply requires a causal link between the provision, criterion or practice applied by the employer and the disadvantage suffered (both by the group and the individual).  The employee therefore simply had to show that the test disadvantaged BME candidates and candidates over the age of 35 and that it disadvantaged him.

Facts

In Essop and others v Home Office, Mr Essop was from a BME background and was over the age of 35. He argued that the requirement to pass a Core Skills Assessment (CSA) in order obtain a Civil Service promotion indirectly discriminated against him on grounds of age and race. A 2010 report commissioned by the Home Office indicated that the BME pass rate was 40.3% of that of the white candidates and that he pass rate of candidates aged 35 or older was 37.4% of those below that age. No one knows why this is the case. Mr Essop failed the CSA and claimed indirect race and age discrimination.

Decision

An employment tribunal decided at a preliminary hearing that he had to prove why the pass rate was lower amongst BME candidates and those over the age of 35 and the reason they failed the test. The case eventually reached the Supreme Court which overruled the employment tribunal decision.

The Supreme Court noted that there is no express requirement in the legislation for an explanation of why a particular provision, criterion or practice (in this case the CSA) puts one group at a disadvantage when compared to others. Whilst in many cases the reason will be obvious, in some it will not. The legislation simply requires a causal link between the provision, criterion or practice and the disadvantage suffered (both by the group and the individual). The claimant simply had to show that the test disadvantaged BME candidates and candidates over the age of 35 and that it disadvantaged him.

Implications

Where a person is bringing a claim if indirect discrimination, they do not need to show why a provision, policy or practice disadvantages them (and others with their protected characteristic). They simply have to show that it does so and they can rely on statistical evidence to prove this. Cases of direct discrimination are different. There the claimant has to show that the reason why the employer treated them less favourably was because , for example, of race or age.

This case will now return to the employment tribunal which will have to consider whether the Home Office can justify its use of the CSA as a proportionate means of achieving a legitimate aim.