Indirect Discrimination – Requirement to prove Personal Disadvantage

Louise Walker
Louise Walker
Legal Director
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In a recent case, the Court of Appeal held that, in order to succeed with a complaint of indirect discrimination under the Equality Act 2010 (the Act), a claimant must establish not only that they were a member of a disadvantaged group but also why the relevant provision, criterion or practice (PCP) caused them personal disadvantage.

In this case, the Home Office required employees to pass a Core Skills Assessment (CSA) test in order to be eligible for promotion. The same test applied to all employees seeking promotion, regardless of their role.

Statistically, a higher percentage of black and minority ethnic (BME) employees over the age of 35 failed the CSA. The claimants brought indirect race and age discrimination proceedings against the Home Office arguing that:

1.    The employer’s requirement that candidates pass the CSA before being eligible for promotion was a PCP.

2.    That there was a significantly higher chance of older BME candidates failing the CSA than younger BME candidates.

3.    The claimants had failed the CSA and there was no particular personal factor specific to any individual claimant that might explain this.

The Employment Appeal Tribunal had previously overturned the Employment Tribunal’s decision and concluded that the Act does not require a claimant to show the reason why they were subjected to a disadvantage; only the fact that they had been disadvantaged.

However, overturning the decision of the Employment Appeal Tribunal, the Court of Appeal held that the claimants had to show why the PCP had disadvantaged the group and also why it had disadvantaged them as an individual.

The case was remitted to the Employment Tribunal to determine whether the claimants could prove individual disadvantage.

This case is important because it will now not be enough for a claimant to show that they are a member of a protected group that is disadvantaged by some rule or practice operated by their employer. They now also have to show that the rule or practice operated to disadvantage them in their own individual circumstances.

You can read the case here: http://www.bailii.org/ew/cases/EWCA/Civ/2015/609.html

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