Identifying the provision, criterion or practice which puts a group at a particular disadvantage under s.19 Equality Act 2010. Essop v Home Office; Ishola v Transport for London.
Indirect sex discrimination; part-time workers; judicial notice. The EAT established that it is a matter of judicial notice that women are disproportionately represented among part-time workers. A requirement to work full-time therefore constitutes indirect discrimination against women. A foundational authority for the proposition that statistical proof is not required where disadvantage is inherent in the PCP.
Indirect discrimination; 'Objective Justification' requires a real need, appropriateness, and necessity.
Discrimination; justification; the test for justifying indirect discrimination is 'justifiable need', not 'necessary'.
Whistleblowing; a breach of the employee's own contract *can* be a qualifying disclosure (overturned by 2013 public interest test).
Discrimination; PCP; a requirement to be 'mobile' was a PCP.
Discrimination; indirect; tribunal must weigh the discriminatory impact against the employer's needs.
Discrimination; justification; the tribunal must perform a critical evaluation of the employer's reasons, not just accept them.
Indirect discrimination; a requirement to work full-time acts as a detriment to women with childcare responsibilities.
Indirect discrimination; race; justification. The Court of Appeal upheld findings of indirect race discrimination in an ex-gratia compensation scheme for WWII civilian internees that required a UK-born parent or grandparent, disproportionately disadvantaging those of Chinese/Far Eastern ethnicity. The Court gave important guidance on the structured approach to indirect discrimination: identifying the PCP, the pool, disparate impact, and then the proportionality of any justification. Mummery LJ emphasised that justification requires cogent evidence that the means are both appropriate and reasonably necessary to achieve the legitimate aim.
Indirect discrimination; the claimant need not prove *why* a PCP puts their group at a disadvantage, only that it *does*.
Indirect discrimination; PCP; a one-off management decision is not a 'Provision, Criterion or Practice'.
Indirect discrimination; PCP; the Court of Appeal held that the concept of a 'provision, criterion or practice' is to be construed broadly. It need not be a formal or express rule but may encompass an informal practice, a one-off managerial decision capable of general application, or a change of policy. The PCP must, however, be identified with sufficient precision, a PCP framed too broadly or too narrowly may lead to incorrect conclusions about group disadvantage.
Indirect discrimination; group disadvantage; judicial notice. The EAT (Choudhury P) confirmed that group disadvantage need not be proved by statistical evidence alone, it may be established by statistical evidence, by inference, by the disadvantage being inherent in the PCP itself, or by judicial notice. It is well established by judicial notice that women are disproportionately represented among part-time workers, so a PCP penalising part-time working puts women at a particular disadvantage without further proof.
Indirect discrimination; individual disadvantage; correspondence with group disadvantage. The EAT held that individual disadvantage suffered by the claimant must correspond to the group disadvantage, a claimant cannot succeed if the disadvantage they personally suffer is qualitatively different from the disadvantage suffered by the group sharing the relevant protected characteristic.
Flexible working; indirect discrimination; a rejected flexible working appeal can be a 'disadvantage' even if later granted.
Amendment; EAT (HHJ Auerbach) dismissed appeal against refusal to add disability discrimination claims (ss.15, 20–21 EqA) for depression and anxiety. The proposed amendment was not a mere relabelling — it introduced wholly new claims that would materially enlarge the legal and factual enquiry, requiring determination of disability status (s.6), whether the respondent knew or ought to have known, disclosure of medical records, additional witnesses, and a further preliminary hearing. The EJ properly distinguished between treatment causing mental ill health (going to remedy) and a pre-existing underlying disability (a new area of enquiry). The EAT confirmed the correct approach is to focus on the extent of new areas of enquiry (per Abercrombie) rather than formal Selkent categorisation, and that the balance of hardship was correctly struck: the respondent faced disproportionate burdens while the claimant already had alternative remedies under live claims. The delay — four months after gaining knowledge of potential disability — was held to be unreasonable even for a litigant in person, given her demonstrated ability to articulate detailed claims.