Essop v Home Office: Proving Indirect Discrimination
Tom Lowenthal 6th April 2017

Yesterday, the UK Supreme Court gave a much-anticipated judgment in the case of Essop v Home Office, concerning the prohibition of indirect discrimination in the employment context. In an area of law beset by confusion, this case is exemplary in the clear and comprehensible way it deals with the issues, and for its sensitive and just outcome.

Mr Essop was employed by the Home Office as an immigration officer. In order to progress through the ranks of that profession, he was required to pass a series of assessments, which he failed. Non-white candidates, and candidates over 35, like Mr Essop, were shown to pass these assessments at 40% and 37% of the rate of candidates without those characteristics, respectively, but no one knew what the cause of this disparity was.

The question was whether this amounted to indirect discrimination under s19 of the Equality Act 2010 (EqA 2010). In the employment context, indirect discrimination under the EqA 2010 requires a claimant to prove that they are put at a disadvantage by a facially neutral provision, practice or criterion (PCP) which their employer applies, and which tends to disadvantage others with whom the claimant shares a protected characteristic (such as age and race). If this can be shown, it falls to the employer to prove that the PCP is justified as a proportionate means of achieving a legitimate aim.

The tricky issue for the Supreme Court was what should be done in Mr Essop’s case, where no one could be sure why non-white and older candidates did so much worse in the assessment. Could Mr Essop really prove that the PCP had put him at a disadvantage, if he could not explain why it had?

The Supreme Court gave a unanimous judgment in his favour, identifying several salient aspects of the concept of indirect discrimination which pointed to the conclusion that a failure to prove causation in this sense was no bar to successfully suing an employer.

Firstly, it held that no prior iteration of the concept of indirect discrimination has required a claimant to show why their group is put at a disadvantage as compared to another group not sharing their protected characteristic, and the text of s19 would support this reading.

Secondly, unlike direct discrimination, indirect discrimination is not focussed on the cause of disadvantage, it is focussed on the outcome of a facially neutral PCP.

Thirdly, the reasons why a group may suffer disadvantage are many and various. There is much to commend this point: a formalistic, but-for approach to causation is ill-suited to dealing with more insidious discrimination.

Fourthly, there is no need that every member of a group sharing the protected characteristic be in fact disadvantaged by the PCP. Any contrary view would rob indirect discrimination of its power to “level the playing field” – on such a view, any PCP not totally exclusionary of a protected group would pass muster.

Fifthly, indirect discrimination is often proved by statistics designed to show correlation rather than causation. The underlying assumption to the way indirect discrimination tends to be proved is that correlation suffices – requiring proof of causation would go against this approach, and would make proving indirect discrimination virtually impossible.

Sixthly, an employer can justify indirect discrimination where they have a good reason for their PCP.

The arguments put forward by the respondents were deftly rejected. Firstly, the argument that the only way an individual claimant can show they suffered the disadvantage in question is to point to the cause of that disadvantage was rejected on the basis that this will turn on how ‘disadvantage’ is defined in each case. In Mr Essop’s case, for example, the disadvantage was failure of the test – which could be easily proved. Secondly, the argument that undeserving claimant may ‘coat-tail upon the claims of deserving ones’ was rejected on the basis that a candidate who fails an assessment for an obviously unrelated reason – because they show up at the wrong test centre, for example – is not in the same position as those who turn up at the right one. The correct comparator in equality law is always the one which is the same in every respect to the claimant(‘s group), except for the protected characteristic.

This is a welcome judgment. Its major effect will concern proof in indirect discrimination claims: claimants may prove that their disadvantage stems from the PCP by showing a causal link, but they may also prove this connection from evidence of mere correlation. Mr Essop did not therefore need to prove which bit of the test was problematic, or that any individual part of it was unfair: the impact of the test on two protected groups was self-evident, and that sufficed.

This avoids placing undue formalistic burdens of proof on claimants, and is sensitive to the notoriously difficult time claimants have proving discrimination. It also recognises the transformative potential of the prohibition on indirect discrimination as a catalyst for critical reflection on employment practices. Employers who are diligent in carefully reviewing their practices for bias and utility have nothing to fear from permitting claims like Mr Essop’s. Those who are sloppy in doing so, on the other hand, have been sent a clear message that passively and uncritically accepting discriminatory impact is unacceptable and unlawful in the modern workplace.

Author profile

Tom Lowenthal is a DPhil candidate at Balliol College. He is writing his thesis on the challenges which public-private partnerships represent to the realisation of children’s right to education. His areas of interest are human rights law, equality law, public law, and armed conflict law. He is managing editor of the Oxford Human Rights Hub Blog and Co-Chair of Oxford Pro Bono Publico.

Citations

Tom Lowenthal, “Essop v Home Office: Proving Indirect Discrimination” (OxHRH Blog, 6 April 2017) <http://ohrh.law.ox.ac.uk/essop-v-home-office-proving-indirect-discrimination> [Date of Access]

Comments

  1. Andrew says:

    “Employers who are diligent in carefully reviewing their practices for bias and utility have nothing to fear from permitting claims like Mr Essop’s.”

    That would be true if costs followed the event and claimants had to secure the risk by insurance (or cash up font). One fine day somebody will see, and say, that the no-costs regime in the Tribunals creates a hopelssly unlevel playing field. It may not matter to the Home Office but to a small business to be sued for unlimited compensation in a jurisdiction where the law becomes ever more complicated and you can’t get an order for your costs if you win – and if you do you probably can’t collect the money – is to be at the wrong end of legalised extortion.

  2. Andrew says:

    Or even cash up FRONT – not cash in the font!

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