Unions welcome ‘landmark ruling’ in Home Office discrimination case

Supreme Court rules that civil servants do not need to prove disadvantage to bring tribunal cases over assessment system

By Richard Johnstone

06 Apr 2017

The Supreme Court

Unions have hailed a Supreme Court decision that found civil servants do not need to prove they were disadvantaged in order to bring a claim for indirect discrimination as landmark ruling.

Supreme Court justices yesterday ruled that 49 black, Asian, and minority ethnic civil servants at the Home Office do not have to prove that the core skills assessment (CSA), which staff needed to pass in order to be eligible for promotion, had disadvantaged them on an individual basis to pursue discrimination cases.

Each of the claimants had failed the assessment, but a report commissioned by the Home Office concluded it had a differential impact in relation to certain protected groups. Specifically, white and younger candidates had a higher selection rate than BME and older candidates.

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An initial employment tribunal found that, as a preliminary issue, the claimants needed to demonstrate both the reason for the lower pass rate in the relevant protected group in anti-discrimination legislation, and that the reason explained their own failure to pass the CSA.

An employment appeal tribunal disagreed, but the initial approach was then backed by the Court of Appeal. This led the civil servants to bring their case, with the support of the PCS union and the Equality and Human Rights Commission, to the Supreme Court.

In the summary of the judgment, the five Supreme Court justices concluded “there has never been any express requirement for an explanation of the reasons why a particular provision, criterion or practice (PCP) puts one group at a disadvantage when compared with others”. It was enough to bring a case that it did so, they said.

“Indirect discrimination, unlike direct discrimination, does not require a causal link between the characteristic and the treatment but does require a causal link between the PCP and the particular disadvantage suffered,” the judgment stated.

“Not every member of the group sharing the protected characteristic needed to be put at a disadvantage, and it was “irrelevant that some BME or older candidates could pass the CSA”, the judges concluded. The group was at a disadvantage “because the proportion who could pass was smaller than the proportion of white or younger candidates”.

Welcoming the ruling, PCS general secretary Mark Serwotka said: "This is a major win, not just for this group of civil servants, but for workers challenging discrimination in the workplace.

“We knew these procedures were flawed, and the Home Office can no longer deny the fact that staff shouldn’t have to prove how and why they are being discriminated against.”

Kate Lea, an employment rights solicitor at Thompsons, who brought the case, added: “Indirect discrimination aims to achieve equality of results.  It deals with hidden forms of discrimination which are not easily identified. This decision will help workers challenge disguised discrimination in the workplace.”

Following the ruling, the claims will now go to employment tribunals.

In a statement, the Home Office said: “We are disappointed by the Supreme Court’s decision on this preliminary issue. The claims brought relate to an internal skills assessment that has not been used since 2013 and the Home Office continues to do all it can to promote equality and fairness in the workplace.”

In a separate case heard together by the Supreme Court, it was also ruled that the workers did not have to show a particular cause for disadvantage to bring a case against pay discrimination based on race or religious grounds.

The case was brought by the Prospect union on behalf of member Mohammad Naeem, who works as a Muslim chaplain for the Prison Service.

As a Muslim chaplain, Naeem is more likely to be paid at the lower end of the pay scale compared to longer-serving chaplains. Prospect argued that this amounted to indirect discrimination on the grounds of religion and race.

Despite winning on the principle of indirect discrimination, the Supreme Court was not prepared to overturn the employment tribunal’s original finding of fact that the Prison Service was justified in its approach to the pay system. This means Naeem loses his claim.

Prospect head of legal Marion Scovell said the judgment confirmed that, where a pay system or any other practice disproportionately affects a racial or religious group, the employer must be able to objectively justify the practice.

“If we had not challenged the Appeal Court’s judgment it would have been an extremely backward step for discrimination law,” she said.

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