Theirs not to reason why

Publication date

Wednesday, April 12, 2017

Approval date

Wednesday, April 12, 2017

Overturning an earlier decision of the Court of Appeal, the Supreme Court has ruled that a group of Home Office employees did not have to show the reason why they had been disadvantaged when they applied for promotion.

Public and Commercial Services Union (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."

Defining indirect discrimination, the Court said: "There has never been any express requirement for an explanation of the reasons why a particular PCP (provision, criterion or practice) puts one group at a disadvantage when compared with others. It is enough that it does."

The landmark case, brought by Thompsons on behalf of the PCS, was on behalf of 49 black, Asian, and minority ethnic (BME) civil servants who brought claims of indirect race and age discrimination against the Home Office.

In order to be eligible for promotion to certain higher grades, candidates had to pass the Core Skills Assessment (CSA), designed to test certain competencies. Each of the claimants had failed the CSA.

However, a report commissioned by the Home Office had concluded that white and younger candidates had a higher selection rate than BME and older candidates.

The original Employment Tribunal said that the claimants needed to demonstrate both the reason for the lower pass rate in the relevant protected group and that the reason explained their own failure to pass.

The Employment Appeal Tribunal (EAT) disagreed and, after the Court of Appeal sided with the Employment Tribunal, the final decision was left to the Supreme Court. The full text of its judgment in Essop and others v Home Office (UK Border Agency) can be found at http://bit.ly/2o8VZgi.