Home Office (Uk Border Agency) v Shafic Essop and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSir Colin Rimer,Lord Justice Lewison
Judgment Date22 June 2015
Neutral Citation[2015] EWCA Civ 609
Date22 June 2015
Docket NumberCase No: A2/2014/1802

[2015] EWCA Civ 609

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

MR JUSTICE LANGSTAFF

UKEAT/0480/13/SM

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE CHANCELLOR OF THE HIGH COURT, Sir Terence Etherton

Lord Justice Lewison

and

Sir Colin Rimer

Case No: A2/2014/1802

Between:
Home Office (Uk Border Agency)
Appellant
and
Shafic Essop and Others
Respondents

Ms Naomi Ellenbogen QC and Mr John-Paul Waite (instructed by The Treasury Solicitor's Department) for the Appellant, Home Office (UK Border Agency)

Ms Karon Monaghan QC and Ms Nicola Braganza (instructed by Thompsons Solicitors) for the Respondents

Hearing date: 21 April 2015

Sir Colin Rimer

Introduction

1

This appeal is against an order dated 16 May 2014 made by Langstaff J (the President) in the Employment Appeal Tribunal ('the EAT') allowing an appeal against a judgment of Employment Judge Baron in the London South Employment Tribunal ('the ET') sent with written reasons to the parties on 25 June 2013. The ET's judgment followed a pre-hearing review in an unidentified number of test claims that had been selected out of a total of 52 claims brought against the Home Office (UK Border Agency) by its employees. The claims are for indirect race and/or age discrimination.

2

The pre-hearing review was triggered by the emergence at a case management discussion of a difference between the claimants and the Home Office as to the interpretation and application of section 19 of the Equality Act 2010. The parties assessed that a resolution of that difference in advance of the final hearing of the claims would be likely to assist in achieving their more economical disposal.

3

So it was that the preliminary issue came to be determined by Judge Baron. He decided it in favour of the Home Office. On the employees' appeal to the EAT, Langstaff J took a different view and decided it in favour of the claimants. With the permission of Sir Stephen Sedley, the Home Office appeals to this court and asks it to restore Judge Baron's judgment. We have had the benefit of able arguments from Ms Ellenbogen QC and Mr Waite for the Home Office and Ms Monaghan QC and Ms Braganza for the claimants.

The factual background

4

The claimants are employed by the Home Office. Mr Essop, the lead claimant, started his employment in 1995 and his current role is that of an Immigration Officer. The Home Office has a practice of applying to all staff a requirement to sit and pass a Core Skills Assessment (' CSA') in order to become eligible for promotion. The CSA is a generic test for all jobs at the same level, regardless of a job's particular role. The levels are HEO original, HEO interim and Grade 7. The CSA bears no correlation to the post for which the candidate intends to apply. If the candidate passes the CSA, he must then sit and pass a Specific Skills Assessment, which (unlike the CSA) is adapted to the post applied for.

5

The claimants all failed the CSA and so were ineligible to be considered for promotion. Their claims against the Home Office are for indirect discrimination, for which they rely upon their protected characteristics of race as black and minority ethnic ('BME') and/or of age; those whose case is based on age rely on the fact they were 35 or older at the time. Each claimant's case is that the Home Office requirement for all employees to pass the CSA in order to demonstrate eligibility for promotion is a 'provision, criterion or practice' ('PCP') for the purposes of section 19 of the Equality Act 2010 that disadvantaged them and resulted in indirect discrimination. Their comparators are white and/or younger Home Office employees who had also been required to pass the CSA in their bid for promotion.

6

The claims are evidentially based on a statistical report of February 2010 that was commissioned by the Home Office in 2009 to assess the equality impact of the CSA. It was the work of external diversity specialist consultants, Pearn Kandola, a firm of occupational psychologists. Its conclusion was that BME and older candidates had a proportionately lower CSA pass rate than white and younger candidates. It noted that whilst a more detailed breakdown of candidate ethnicity was available, all non-white candidates had been pooled into the BME grouping in order to maximise the sample size of the group and thus the reliability of the analysis. As regards age, it noted that:

'… for simplicity, most of our analyses on age band were based on two categories — those candidates who were 34 or younger and those candidates who were 35 or older. These two groupings were chosen because they provided the most even split (698 and 628 candidates respectively).'

7

The claimants also rely on a report of 26 May 2011 by Tyzack Associates, which confirmed that the differential impact identified by Pearn Kandola was statistically significant. They reported that:

'The BME selection rate was 40.3% of the White selection rate and there was a 0.1% chance that this could happen by chance. For older candidates the rate was 37.4% with again 0.1% risk that this could happen by chance.'

8

It is agreed (i) that no reason was identified in either report to explain the differential impact and (ii) that many BME and/or older candidates passed the CSA. Langstaff J recorded, at [2] of his judgment, that for the purposes of the pre-hearing review in the ET it was assumed:

'(a) There was a statistically significant difference between the success of BME/older candidates and younger non BME candidates sitting the CSA test.

(b) There was no particular personal factor specific to any individual Claimant that might explain this.

(c) However, not all older BME candidates failed.'

I understand it also to be agreed that many white candidates also failed the CSA, including white candidates who were 34 or younger.

9

Before explaining the nature of the issue that, on these assumptions, the ET had to decide, I shall first refer to the applicable legislation.

The Equality Act 2010

10

Section 13 of the Equality Act 2010 ('Direct discrimination') provides:

'(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. …'

11

Section 19 of the Act ('Indirect discrimination') provides:

'(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if —

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are —

age;

race;

….'

12

Section 23 of the Act ('Comparison by reference to circumstances') provides:

'(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case. …'

13

Section 39 of the Act (in Part 5, 'Work', Chapter 1, 'Employment, etc') provides:

'(2) An employer (A) must not discriminate against an employee of A's (B) —

(a) as to B's terms of employment;

(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service ….'

14

Section 124 ('Remedies: general') provides:

'(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).

(2) The tribunal may —

(a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;

(b) order the respondent to pay compensation to the complainant;

(c) make an appropriate recommendation.

(4) Subsection (5) applies if the tribunal —

(a) finds that a contravention is established by virtue of section 19, but

(b) is satisfied that the provision, criterion or practice was not applied with the intention of discriminating against the complainant.

(5) It must not make an order under subsection (2)(b) unless it first considers whether to act under subsection (2)(a) or (c) …'.

15

Section 136 ('Burden of proof') provides:

'(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

(6) A reference to the court includes a reference to —

(a) an employment tribunal; …'

The issue before the ET at the pre-hearing review

16

I take this from Judge Baron's summary of the arguments as set out at [19] to [27] of his reasons for his judgment.

17

It is agreed that the Home Office requirement for all candidates for promotion to pass the CSA is a PCP for the purposes of section 19. The claimants' case was that they were the victims of indirect discrimination within the meaning of that...

To continue reading

Request your trial
11 cases
  • Ms M McGuiness v British Gas Services: 3331762/2018
    • United Kingdom
    • Employment Tribunal
    • 29 Abril 2020
    ...show why the requirement to pass the CSA put the group at a disadvantage and 30 that he or she had failed the test for that same reason ([2015] IRLR 724). 305. The EAT in Naeem at [2014] IRLR 520] had held that the pay scheme was not indirectly discriminatory, as chaplains employed before 2......
  • Essop and Others v Home Office (UK Border Agency)
    • United Kingdom
    • Supreme Court
    • 5 Abril 2017
    ...27 before Lady Hale, Deputy President Lord Clarke Lord Wilson Lord Carnwath Lord Hodge THE SUPREME COURT Hilary Term On appeals from: [2015] EWCA Civ 609 and [2015] EWCA Civ 1264 Appellant (Essop and ors) Karon Monaghan Nicola Braganza (Instructed by Thompsons Solicitors LLP) Appellant (Nae......
  • Ms R Sargent and Others v London Fire and Emergency Planning Authority and Others: 2202235/2015 and Others
    • United Kingdom
    • Employment Tribunal
    • 1 Octubre 2021
    ...A cannot show it to be a proportionate means of achieving a legitimate aim.” Conclusions 122 Mr Lynch refers me to Essop v Home Office [2015] ICR 1063 which was a test case in which the claimants, who were black and minority ethnic civil servants over the age of 35, sought to achieve promot......
  • The Lord Chancellor and Secretary of State for Justice v V McCloud & Others
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 Diciembre 2018
    ...relied upon. In arriving at this conclusion, the judge relied upon two recent decisions of the Court of Appeal, Essop v Home Office [2015] EWCA Civ 609; [2015] ICR 1063 and Naeem v Secretary of State for Justice [2015] EWCA Civ 1264; [2016] ICR 289. The attempt to treat age discriminatio......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT