Nick Hobden, a partner in the Employment team at Thomson Snell & Passmore, comments on the news that claimants won thier appeal against the Home Office on protected charateristics under the Equality Act. The case is was brought by workers employed by the Home Office who were required to pass a Core Skills Assessment in order to be eligible for promotion.
The indirect discrimination case of Essop v Home Office came to a conclusion this week when the Supreme Court handed down a judgement on whether, in order to successfully bring a claim for indirect discrimination under the Equality Act 2010, a claimant needs to show the reason why a provision, criterion or practice puts or would put (a) the claimant; and (b) persons with whom the claimant shares a protected characteristic at a particular disadvantage. This case features an immigration officer who comes from an ethnic minority and did not pass a core skills assessment to be eligible for promotion. He and 35 other officers were all allegedly disadvantaged, because statistically all where disproportionately likely to fail the test.
This outcome demonstrates that the Equality Act is clear: in order to succeed in a claim for indirect discrimination, all an employee has to show is that there is a practice which puts them and others of a similar protected characteristic e.g. black minority, at disadvantage in comparison to those that do not have the same characteristics, not why they are disadvantaged.
Often it will be self-evident about the manner or kind of disadvantage suffered. It is then for the employer to show that the practice is a proportionate means of achieving a legitimate business aim such as the raising of skills in the work place by application of a rigorous promotion criteria.