Essop & Ors (Appellants) v Home Office (UK Border Agency) [2017]

The case of Essop is a significant case on discrimination in which the Supreme Court held that employees are not required to show why they were personally placed at a disadvantage by a relevant provision, criterion, or practice (PCP).

In Essop & Ors v the Home Office the issue before the Supreme Court was whether section 19(2)(b) and (c) of the Equality Act 2010 requires the reason for the disadvantage suffered by the group to be established for a finding of indirect discrimination.

The Equality Act 2010 section 19(1) and (2) sets out the definition of indirect discrimination as follows:

1. Person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
2. For the purposes of (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if —
a. A applies, or would apply, it to persons with whom B does not share the characteristic;
b. it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it;
c. it puts, or would put, B at that disadvantage; and
d. A cannot show it to be a proportionate means of achieving a legitimate aim

By way of background, Mr Essop was the lead Appellant in a group of 49 people. Mr Essop was employed by the Home Office and was required to pass a Core Skills Assessment (CSA) as a criterion to promotion to certain civil service grades. Black and minority ethnic candidates aged 35 or above had lower pass rates for this core skills assessment than white and younger candidates. This was revealed by a 2010 report commissioned by the Home Office.

Mr Essop’s case was that the requirement to pass the CSA as a prerequisite to promotion to certain civil services grades (the PCP) constituted indirect age and race discrimination. The CSA was a generic test, and therefore, was non-specific to particular roles of candidates at the Home Office. Those who passed the CSA were then required to pass a Specific Skills Assessment relevant to their particular posts.

The parties had differing views: the Home Office contended that the claimants (including Mr Essop) had to demonstrate the reason why the PCP was discriminatory whereas the claimants asserted that they did not.

It was decided between the parties that a pre-hearing review was essential to determine the issue in question.

The Supreme Court in Essop concluded that in order to establish an indirect discrimination claim, it is not necessary for the claimant to show the reason for the particular disadvantage. The essential element is a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual. Nevertheless, this may be easier to prove if the reason for the group disadvantage is known.

The Supreme Court was not asked to consider whether the PCP itself was indirectly discriminatory. However, this issue is important to consider here. The administering of a generic assessment which has a disproportionate effect on non-white older staff could result in indirect discrimination if it cannot be shown that the PCP is a proportionate means of achieving a legitimate aim.

As a result of this decision, employees have an easier hurdle to pass when claiming indirect discrimination as they need not show the reason why a PCP has a discriminatory effect.

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