Supporting equal access to the labour market and the right to be treated fairly at work

What is the correct test to be applied in cases of indirect discrimination?

The Claimants were civil servants who had to pass a Core Skills Assessment (CSA) in order to become eligible for promotion to higher grades. A report commissioned by the Home Office revealed that BME and older candidates had lower pass rates than white and younger candidates. The Court of Appeal had dismissed Mr Essop's claim as he was unable to show the reason why the Home Office requirement to pass the CSA put BME and older candidates at a disadvantage.

It's part of our role to help make sure that people in Britain have equal access to the labour market and are treated fairly at work.

We funded this case using our powers under s28 Equality Act 2006.

The Supreme Court reversed the decision of the Court of Appeal, saying that it was not necessary in an indirect discrimination for the Claimant to show the reason why the requirement (PCP) put a particular group at a disadvantage. All that was necessary was to show was a connection between the PCP and the disadvantage suffered by the group and the individual. Here the requirement to pass the CSA placed BME and older candidates at a disadvantage (for reasons unknown) and Mr Essop had been disadvantaged. The Supreme Court commented that it may be easier to prove that the PCP disadvantages a group if the reason why it does so is known, but this is just a question of evidence.

Indirect discrimination can now be claimed in a more straightforward way. Those who want to defend policies that look as if they disadvantage people sharing a particular protected characteristic, must justify them.