Employers will welcome a Court of Appeal ruling that it is not enough for claimants seeking to establish indirect discrimination to produce statistics showing disadvantage to a protected group. In UK Border Agency v Essop concerning an assessment for which BME/older candidates had a lower success rate, the Court of Appeal disagreed with the EAT and ruled that a claimant must also show why the claimed disadvantage is said to arise for that group and that it also applies to the claimant.
However, a tribunal may be able to infer the required reason from the statistics, in the absence of any other explanation, and it will then be for the employer to establish objective justification.
Key contacts
Samantha Brown
Managing Partner, Employment, Pensions and Incentives, UK and EMEA, London
Steve Bell
Managing Partner, Employment, Industrial Relations and Safety, Asia and Australia, Melbourne
Emma Rohsler
Partner, Head of Employment, Pensions and Incentives, EMEA, Paris
Tim Leaver
Partner, London
Andrew Taggart
Partner, London
Fatim Jumabhoy
Partner, Head of Employment & Workplace Investigations, Asia, Singapore
Barbara Roth
Partner, New York
Christine Young
Partner, London
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.