John-Paul Waite acts for Home Office in test case before the EAT on the meaning of s19(2)(c) of the Equality Act

In a case described by the EAT as being of “seminal importance” when it granted permission to appeal , 50 Claimants alleged that they were indirectly discriminated against on grounds of race or age as a result of the requirement to sit an internal examination in which the pass rate of BME and older candidates was lower than their white counterparts.    The Employment Judge held at a preliminary hearing that the Claimants were required to prove the reason why they had failed in order to show, for the purposes of s19(2)(c), that they were at the same disadvantage as their protected group.    The EAT reversed that decision, concluding that the mere fact of failure (coupled with their membership of the relevant protected group) was sufficient to give rise to indirect discrimination.   The Home Office is appealing to the Court of Appeal:    Essop and Others v Home Office UKEAT/0480/13/SM.