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Need to Show Why Discrimination Arose

UK Border Agency v Essop

Mr Essop and colleagues brought tribunal claims after failing assessments at work and, therefore, being passed over for promotion. Their protected characteristics were age (they were over 35) and race (black and ethnic minority). Relying on statistical reports which showed that older and black and ethnic minority employees had a lower pass rate than younger, white employees, they claimed indirect discrimination.

The case hinged on whether an employee has to show why the provision, criterion or practice (in this case, the requirement to pass the test before being eligible for promotion) had caused them to suffer a disadvantage. The Court of Appeal held that they do. It is not enough for a claimant to say that they are a member of an underperforming protected group and that they failed the selection test. They must show why their group was at a disadvantage and that that reason applied to them.