Did the civil services core skills assessment (CSA) indirectly discriminate against black and minority ethnic (BME) candidates, who are statistically less likely to pass it?
Yes, said the Employment Appeal Tribunal, in the case of Essop-v-Home Office (Border Agency). This means that the CSA test is indirectly discriminatory and will need to be objectively justified by the Home Office.
Indirect discrimination is concerned with apparently neutral acts, decisions or policies that are not intended to treat any particular person less favourably, but which in practice have the effect of disadvantaging a group of people. It is possible to ‘objectively justify’ indirect discrimination claims, by showing that the selection criteria meet a legitimate business aim and go no further than is reasonable and proportionate in achieving this aim.
In this case, the claimants had failed the CSA, and were from BME backgrounds. They argued that they could get their claim of indirect discrimination up and running simply because they belonged to the group who were less likely to pass.
The Home Office argued that the individuals had to show that they had specifically and personally been negatively affected by the exams. Otherwise it would open the flood gates to ‘tale-coaters’ who could bring claims even if they were not themselves disadvantaged, but simply belonged to the affected group.
The Appeal Tribunal disagreed with the Home Office and held that there did not need to be a link between the group disadvantage, and the particular claimant. It was enough for them to show that they belonged to the group that, as a whole, was disadvantaged.
Implications for businesses
The significant implication for businesses is that, subject to the appeal that is likely to follow, they will now need to objectively justify any academic criteria that they use to select candidates for jobs. They may not simply be able to choose the person with the best academic qualifications, if those academic qualifications would mean that the applicant is overqualified for the position.