Indirect Discrimination: shaking off the coat tailers

Indirect discrimination is all about the presence of a “provision, criterion or practice” (PCP) in the workplace that puts individuals with protected characteristics at a disadvantage compared to those without them, where the employer cannot justify the PCP.


One way to set about proving the harmful effect of the PCP on groups is to produce a statistical analysis. If that provides grounds to conclude that a group with a common characteristic has been disadvantaged, does the burden then pass to the employer (a) to justify the PCP or (b) to admit liability and hope for a loophole when it comes to remedy?


Evidently not, according to the Court of Appeal in Home Office (UK Border Agency) v Essop & others, decided on 22 June 2015. Membership of the disadvantaged group is not sufficient. The claimant must also establish why the PCP disadvantaged him as an individual.


This case was all about a Home Office requirement for promotion applicants to pass a Core Skills Assessment. A statistical analysis showed that applicants sharing a black minority ethnic (BME) characteristic, or aged over 35, had a notably lower pass rate. In the Court of Appeal’s view, the statistics were not conclusive on their own. One notable comment: -


“But why should a coat tailer, if he can be identified as such, be entitled to succeed?”


A coat tailer, in context, would be an individual who had failed the CSA for a reason other than the perceived disadvantage inflicted by the PCP. Such an individual, according to the Court of Appeal, was not entitled merely to invoke his protected characteristic and call upon the employer either to justify the PCP or to plead for reduced or no compensation: -


“Why has the employer in such a case not so disproved the coat tailer’s claim as to be entitled to have it dismissed? The coat tailer will not have proved a contravention of the legislation…”


Indirect discrimination is always going to be a minefield for employers. This decision has at least made its navigation a little easier.

Are employees under an implied duty to disclose a mere allegation of impropriety against them?

Evidently not, according to Mitting J in the Employment Appeal Tribunal case of Basildon Academies v Amadi. If the employer has not imposed any express contractual term or clear policy requiring an employee to disclose such information, there is no scope for the employer to treat such an omission as gross misconduct.


This case, interestingly, was in the education sector and involved an allegation of sexual assault against the claimant when working for Employer B on days when not under contract with Employer A. Upon hearing of the allegation (which in fact led to no prosecution), Employer B suspended him. The claimant kept it quiet and did not tell Employer A, who went one step further once they found out, and used the non-disclosure as grounds for a gross misconduct dismissal.

The judge found the dismissal unfair. There was no basis to impose an implied duty to disclose an allegation of impropriety, save for one that the employee knew or had reason to believe was true. As such there was no misconduct at all, let alone any that still left dismissal outside the range of reasonable responses.


What is the moral for employers? Keep your terms under review and make sure they are wide enough and clear enough to catch any act or omission that you wish to treat as misconduct. It’s all very well to list examples of gross misconduct and to proclaim that they are non-exhaustive, but you’ll have the burden of proving that anything else is caught.