Indirect Discrimination: Proving Disadvantage

Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary

Is it necessary in an indirect discrimination claim for the Claimant to show why the provision, criterion or practice has disadvantaged the group and the individual Claimant?

Yes, held the Court of Appeal in UK Border Agency v Essop.

The Home Office has a practice of requiring all staff to sit and pass an assessment in order to become eligible for promotion. The statistics suggested that BME candidates and those who are older than 35 were much less likely to pass the assessment than non-BME and younger candidates, although there was no particular personal factor specific to any individual Claimant that explained their failure.

Allowing the appeal, the Court held that it is conceptually impossible to prove a group disadvantage without also showing why the claimed disadvantage is said to arise. Group disadvantage cannot be proved in the abstract.

Importantly, the Court went on to note that in principle it was open to the Claimants to rely on the statistics as evidence supporting the assertion that they were personally disadvantaged by theprovision, criterion or practice in the same way as the group was. Such evidence may prove facts from which, in the absence of any other explanation, the employment tribunal could decide that the discrimination case is proved, thereby shifting the burden of proof.