Home Office (UK Border Agency) v Essop and Others [2015] EWCA Civ 609
52 claims were brought against the Home Office arguing that the requirement to take the ‘Core Skills Assessment’ amounted to indirect race and age discrimination. A declaratory Judgment was sought from the Employment Tribunal to determine precisely what the Claimants would need to prove to establish group and individual disadvantage within the meaning of S19(2)(b) and (c) of the Equality Act 2010.
The Court of Appeal defined the preliminary point as what the Claimants need to prove in order to reach the point at which considerations of objective justification might arise and the following guidance was given:
- It is necessary for a claimant to show why the PCP has disadvantaged the group and individual claimant.
- Group disadvantage, for the purpose of S19(2)(b), cannot be proved in the abstract. Its proof necessarily requires a demonstration of why the comparative exercise inherent in S19(2)(b) inquiry results in the claimed disadvantage.
- In the present case the Claimants said that they had answered the ‘why’ question because the statistics showed the group to be disadvantaged but the difficulty was whether and how each claimant could also discharge the S19(2)(c) burden. e.g. a woman asserting that a fulltime work PCP disadvantages women employees as a group must assert and prove why that is so (perhaps because of child care responsibilities) and that the same disadvantage applies to her, namely that she too is disadvantaged by her childcare responsibilities. Accordingly it is necessary for the claimants to prove the nature of the group disadvantage to surmount S19(2)(b) and that each claimant must also prove he or she suffered the same disadvantage to surmount S19(2)(c)
- The need of proof by each claimant of personal disadvantage for the purposes of S19(2)(c) is not a pre-condition of his right to bring a discrimination claim to which the burden of proof provisions in S136 have no application. In a bid to prove it a claimant may place such reliance as is open to him on the burden of proof provisions.
- If the ET declined to find that any claimant was subject to the same disadvantage as the group as a whole (i.e. a failure to surmount S19(2)(c)) that claimant would fail to prove a contravention of the Equality Act 2010. The ET would have no jurisdiction to grant a remedy and the correct course would be to dismiss the claim.
- If a claimant satisfies S19(2)(a)-(c) it is then open to a respondent to seek to justify the PCP under S19(2)(d).
The case emphasises the need for a claimant to prove each aspect of S19(2)(a) – (c) and that because limb (b) is proved it does not necessarily mean that limb (c) is proved as a consequence and in essence the claimant will need to adduce evidence to show that he or she is also so affected.
James Bax, Barrister