John-Paul Waite acts in leading indirect discrimination claim before the Supreme Court – Essop (others) v Home Office

John-Paul Waite acted for the Respondent in the indirect discrimination claim before the Supreme Court Essop (others) v Home Office (UK Border Agency)  [2017] UKSC 27. The judgment was handed down on 5 April 2017

The case related to the phenomenon known as “differential impact”, namely the process whereby an apparently neutral provision, criterion or practice impacts disproportionately upon one or more protected groups.  The central question in the appeal was whether, in a claim for indirect discrimination under section 19 of the Equality Act, it is necessary for the Claimant to identify the reason for the differential impact upon which they rely.

Essop v Home Office concerned a requirement by the Home Office for civil servants to pass a written assessment before becoming eligible for promotion to certain grades. The results of the assessment in question exhibited “differential impact” to the extent that the pass rate amongst Black and Minority Ethnic (BME) candidates and candidates over the age of 35 was significantly lower than amongst white and younger candidates. The reason for that differential impact was unknown.

The Supreme Court concluded that there was no requirement upon the Appellants to identify the reason/s for the underperformance of their protected group.  It found that the relevant disadvantage for the purposes of section 19(2)(b) was that a greater proportion of BME/older candidates failed the test and that the Appellants were at “that disadvantage” because they were both members of the relevant protected group/s who and they themselves had failed the test.

The case will now be remitted to the Employment Tribunal to determine the claims, including the question of objective justification.

 

For a copy of the full judgment click here