In Essop and others v Home Office (UK Border Agency) the EAT found that there is no requirement for a claimant who has alleged indirect discrimination to show why he or she, in particular, was disadvantaged by the employer's practices.
The provisions relating to indirect discrimination are intended to catch discriminatory practices which appear neutral (because they are applied to everyone, regardless of whether they have a particular protected characteristic) but which in fact unfairly disadvantage certain groups. For example, a requirement that all staff work fixed, full time hours could disadvantage those who are the main carer for a young child (still predominantly women).
The claimants in Essop are civil servants who claim that an internal assessment, which it is necessary to pass to achieve promotion, disadvantages candidates from black and minority ethnic (BME) backgrounds who are over the age of 35. They seek to rely on statistical evidence which shows that older BME candidates are less likely than younger and non-BME candidates to pass the test in question.
At a pre-hearing review, an Employment Judge held that in order to succeed the claimants would have to show not only that BME candidates over 35 were statistically less likely to pass the test, but also the reason why each individual Claimant had not passed – otherwise, an individual could make a claim based upon statistical disadvantage irrespective of whether the cause of the disadvantage suffered by the group actually affected him or her, and therefore benefit from 'a statistical fluke'.
However, the EAT overturned this decision at appeal, stating that the relevant provisions of the Equality Act 2010 do not require claimants to show why they suffered a disadvantage. Moreover, in many instances it will not be possible to identity why a 'group disadvantage' arises (i.e. why older BME candidates are statistically less likely to pass the test), so to require individual claimants to show that the group disadvantage applies to them (i.e. that this is why they failed the test) would be unfair. The purpose of the law on indirect discrimination is to combat 'disguised' discrimination, and the fact that it is not always possible to identify a specific aspect of an employer's practices which results in a particular group suffering a disadvantage should not prevent a claim of indirect discrimination from succeeding. The possibility of an undeserving claimant benefiting from a statistical fluke can be dealt with when objective justification and/or remedy are considered.
The case has now been remitted to the Employment Tribunal to consider whether the requirement that all Home Office employees pass the test in order to qualify for promotion can be objectively justified.