2 weeks ago
A case last week has looked at whether or not an employee has to show why a practice or criterion has a discriminatory effect on them. The answer is that they do not.
To put this in context, a promotion exam at the home office was statistically more likely to be passed by white people than by ethnic minorities. No one knew why this was, but the statistics spoke for themselves. The employee brought a claim for indirect discrimination and the employer defended saying that this could not be discrimination because no one had identified why the statistics were as they were.
The Employment Appeal Tribunal said that why the statistics were as they were was of no importance in this case. The fact is that the exam was less likely to be passed by ethnic minorities and the employee themselves had failed it and therefore suffered a personal loss. That was enough to show discrimination.
The practical lesson from this is that monitoring of opportunities in an organisation can be a useful tool to help spot and avoid discrimination, but perhaps employers should be cautious about publishing the results of that monitoring until they have corrected any perceived inequalities.
The case is Essop v Home Office (2014) EAT.