Thanks to Thomas O’Donohoe of 3 Paper Buildings for preparing this case summary
In a claim for indirect discrimination do members of a disadvantaged group have to show why they have suffered the disadvantage, in addition to the fact that they have done so?
No, held the EAT (Langstaff P) in Essop & others v Home Office (UK Border Agency).
For the purposes of this test case it was assumed that black and minority ethnic ('BME') candidates over the age of 35 were systematically less likely than non-BME and younger candidates to pass a Core Skills Assessment and so to obtain promotion in the Civil Service.
At a pre-hearing review the Respondent had argued successfully that the claims of indirect discrimination could not succeed unless the individual Claimants could prove the reason they failed the test. Otherwise, they could not show that they were 'at that disadvantage' as required by s.19(2)(c) of the Equality Act 2010.
The EAT held that the tribunal judge had erred in imposing that requirement which was not required by the statute. It did however remain open to Respondents to indirect discrimination claims to show that a particular member of the disadvantaged group was not in fact disadvantaged by the relevant provision, criterion or practice.