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Reason for disadvantage must be given
In Home Office (UKBA) v Essop and others, the Court of Appeal has given guidance on indirect discrimination claims. It has stated that Claimants complaining of indirect discrimination under the Equality Act 2010 must not only establish that they were a member of a group disadvantaged by the indirect discrimination but also why the relevant provision, criterion or practice had disadvantaged them as a individual.
The case centred on the Home Office practice of requiring all staff to sit and pass a core skills assessment to become eligible for promotion. The test was generic and, if passed, was followed by a different test specific to the particular role. A report into the equality impact of the generic test concluded that black and ethic minority, and older, candidates had a proportionately lower pass rate than younger and white candidates. The Employment Judge held that it was not sufficient for the Claimants merely to show that they formed part of a group that was less likely to pass the exam; each one had to demonstrate why they were less likely to pass. This decision was overturned by the EAT which considered that the wording of section 19 of the Equality Act did not require a Claimant to show the reason they were subjected to the disadvantage, only the fact there was a disadvantage.
The Home Office appealed to the Court of Appeal which accepted that the wording of section 19 does not expressly require the reason to be shown but also considered that it was impossible to show a group disadvantage for the purpose of section 19 (2)(b) without also showing why the disadvantage is said to arise. The appeal was allowed.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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