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Workplace Statistics Not Enough to Prove Indirect Discrimination

Statistical evidence of unequal treatment in the workplace is not enough by itself to found an indirect discrimination claim, the Court of Appeal has ruled in an important test case involving a group of Home Office employees.

The members of the group had all failed a Home Office test and could not qualify for promotion as a result. They were all aged 35 or over or were from ethnic minority backgrounds. Statistical reports showed that candidates in those categories were less likely to pass the test than those who were younger and white.

The difference was said to be statistically significant and, on that basis, the employees launched proceedings under the Equality Act 2010, alleging indirect race and age discrimination. In ruling on a preliminary issue, the Employment Appeal Tribunal (EAT) found that members of the group had been put at a disproportionate disadvantage in that they were at a greater risk of failing the test.

In allowing the Home Office’s appeal against that decision, the Court of Appeal noted that the case raised an important issue of principle. In order for the claims to succeed, it was necessary to show not only that the test had produced apparently unequal results but also ‘the reason why’ that was the case. Each member of the group was under an evidential burden to show that he or she had been discriminated against on the basis of a protected characteristic. The case was sent back to an Employment Tribunal for determination of remaining issues in the light of the Court’s decision.