In order to succeed in claims of indirect discrimination under section 19 of the Equality Act 2010 based upon the protected characteristics of race and/or age the claimants had to prove the nature of the group disadvantage for the purposes of surmounting the section 19(2)(b) hurdle and each claimant had also to prove that he had suffered the same disadvantage for the purposes of surmounting the section 19(2)(c) hurdle.

The Court of Appeal so held when allowing the appeal of the employer, the Home Office (Border Agency), from the order dated 16 May 2014 made by Langstaff J [2014] ICR 871 in the Employment Appeal Tribunal allowing an appeal by the claimants, Shafic Essop and others, against a judgment of Employment Judge Baron sitting at London South on a pre-hearing review of age and race discrimination claims. Each claimant’s case was that the Home Office requirement for all employees to pass the core skills assessment in order to demonstrate eligibility for promotion was a “provision, criterion or practice” (“PCP”) for the purposes of section 19 that disadvantaged them and resulted in indirect discrimination. The claims were evidentially based on a statistical report that was commissioned by the Home Office to assess the equality impact of the core skills assessment.

SIR COLIN RIMER said that the court disagreed with Langstaff J that it was not necessary in indirect discrimination claims for the claimant to show why the PCP had disadvantaged the group and the individual claimant. The legislation showed that in a direct discrimination claim the claimant had to prove that the respondent’s discriminatory treatment of him was because of, or on the grounds of, his protected characteristic. He must therefore, if he was to succeed, show that to be the answer to “the reason why” question that arose in such claims. In indirect discrimination claims, there was also a necessary “reason why” question but it was of a different nature. It did not go to the employer’s motive or intention, whether conscious or unconscious. It was as to why the PCP disadvantaged the group sharing the protected characteristic. Group disadvantage could not be proved in the abstract. Its proof necessarily required a demonstration of why the comparative exercise inherent in the section 19(2)(b) inquiry resulted in the claimed disadvantage. In the present case, the claimants said that they had answered the “why” question: its answer was that the statistics showed the group to be disadvantaged because its members were disproportionately more likely to fail the core skills assessment than were the comparators who did not share the protected characteristics. The difficulty in the present case was as to whether and how each claimant could also discharge the section 19(2)(c) burden, There was no doubt that one way or another they had to do so if they were to succeed. Judge Baron was in principle correct to hold that the claimants had to prove the nature of the group disadvantage for the purposes of surmounting the section 19(2)(b) hurdle and that each claimant had also to prove that he had suffered the same disadvantage for the purposes of surmounting the section 19(2)(c) hurdle. It was in principle capable of being argued by each claimant that the statistical report would prove his case sufficiently to the point at which there would be a burden of disproof on the Home Office, but that would be a matter for the decision of the employment tribunal at the substantive hearing.