Factual and Procedural Background
The Appellant, a British national referred to as the Plaintiff, sought to qualify as an actuary through Company A, a qualifications body under section 53 of the Equality Act 2010. The Plaintiff alleged that Company A discriminated against him on the grounds of nationality, contrary to section 53. He brought a claim in the Employment Tribunal (ET), which upheld his claim of direct discrimination, finding that Company A treated him less favourably than Indian nationals regarding the number of opportunities to pass qualifying examinations.
Company A appealed to the Employment Appeal Tribunal (EAT), which allowed the appeal, holding that the ET had erred in law in upholding the direct discrimination claim. The EAT set aside the ET's judgment regarding indirect discrimination and claims under sections 111 and 112 of the Equality Act 2010, remitting those claims to a different ET for re-hearing. The Plaintiff now appeals against the EAT's dismissal of his direct discrimination claim and the setting aside of a finding regarding an agreement between Company A and Company B that UK nationals would not be permitted membership of Company B.
Legal Issues Presented
- Whether the ET erred in law in holding that the opportunity to take examinations more frequently constituted "treatment" by Company A under section 53 of the Equality Act 2010.
- Whether there was direct discrimination by Company A against the Plaintiff on the grounds of nationality by granting exemptions for examinations set by Company B to Indian nationals but not to British nationals.
- The correct identification of the appropriate comparator for assessing less favourable treatment.
- Whether there was an agreement or understanding between Company A and Company B that British nationals would not be admitted as members of Company B.
- Whether the ET correctly applied the provisions of sections 111 and 112 of the Equality Act 2010 concerning liability for discrimination by another body.
Arguments of the Parties
Appellant's Arguments
- The act of recognising examinations set by Company B and granting exemptions was an act of Company A, constituting less favourable treatment of the Plaintiff, as only Indian members could benefit.
- Company A could have required Company B to admit British nationals as a condition of recognition or provision of study materials, but did not do so.
- The correct comparator was an Indian student member of Company A who was also a member of Company B, as this comparator was in materially the same circumstances as the Plaintiff.
- The existence of an agreement between Company A and Company B excluding British nationals was relevant evidence supporting the direct discrimination claim.
- The EAT erred in conflating claims of direct and indirect discrimination and in its approach to the choice of comparator and the identification of treatment.
Respondent's Arguments
- The claim was an attempt to recast an indirect discrimination claim as a direct discrimination claim.
- The relevant treatment was by Company B, not Company A, as Company B chose the dates and frequency of its examinations independently.
- Company A's recognition of Company B's exams was based solely on equivalence of syllabus and standards, not nationality.
- The Plaintiff's case about the number of examination opportunities was unsustainable because Company A gave all student members two opportunities per year regardless of nationality.
- The correct comparator was a hypothetical non-British student member of Company A not also a member of Company B, as there was a material difference in circumstances between the Plaintiff and Indian nationals who were members of Company B.
- The ET's finding of an agreement excluding British nationals was unsafe due to limited evidence and procedural fairness concerns.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| James v Eastleigh Borough Council [1990] 2 AC 751 |
Establishes that for a direct discrimination claim to succeed, the reason for the treatment must exactly correspond with the protected characteristic or be a true proxy for it. |
The ET applied this principle to find direct discrimination based on nationality; the EAT and the court held the ET erred, as the treatment did not have exact correspondence with nationality. |
| Jafri v Lincoln College [2014] EWCA Civ 449 |
Clarifies the approach to discrimination claims and the identification of treatment and comparators. |
The EAT applied this precedent to conclude that the direct discrimination claim should fail as the treatment was not by Company A but by Company B. |
| Boohene v Royal Parks Limited [2024] EWCA Civ 1036 |
Addresses the proper identification of comparator groups in indirect discrimination claims. |
The court relied on this authority to support the position that the Plaintiff had not proved the necessary alignment between the protected characteristic and the treatment. |
Court's Reasoning and Analysis
The court analysed the direct discrimination claim by first identifying the relevant "treatment" under section 53 of the Equality Act 2010. It concluded that the Employment Tribunal erred in law by treating the opportunity to take examinations more frequently (four times per year for Indian nationals via Company B's exams, versus two times per year for British nationals via Company A's exams) as treatment by Company A. The court held that Company A only provided two examination sittings per year to all student members, regardless of nationality, and had no control over Company B's examination arrangements.
The court further agreed with the Employment Appeal Tribunal that the Employment Tribunal failed properly to identify the comparator. The Plaintiff's choice of comparator—an Indian student member of Company A who was also a member of Company B—was inappropriate because there was a material difference in circumstances, namely membership of Company B, which was not determined by Company A.
The court also found that the ET wrongly applied the principle from James v Eastleigh Borough Council by treating the additional examination opportunities as a "true proxy" for nationality. It noted that not all Indian nationals were members of Company B, and not all members of Company B were Indian nationals, so there was no exact correspondence.
Regarding the alleged agreement between Company A and Company B excluding British nationals, the court found that the evidence was limited and the finding unsafe. It agreed with the EAT that issues of procedural fairness and territorial jurisdiction required that this claim be remitted to a different ET for reconsideration, potentially involving Company B as a party.
The court rejected the argument that exemptions granted by Company A for Company B's exams constituted treatment on the grounds of nationality, noting that such arrangements were not pleaded as part of the direct discrimination claim and were advanced too late.
Overall, the court upheld the EAT's conclusion that Company A did not directly discriminate against the Plaintiff on grounds of nationality.
Holding and Implications
The court DISMISSED the Plaintiff's appeal against the EAT's decision.
The direct discrimination claim against Company A was held to have failed because the Employment Tribunal erred in identifying the relevant treatment and comparator. The court affirmed that Company A's arrangements did not constitute less favourable treatment on grounds of nationality.
The finding regarding an alleged agreement between Company A and Company B excluding British nationals was set aside as unsafe, and that claim was remitted to a different Employment Tribunal for re-hearing, with no preserved findings of fact. The court noted procedural fairness and jurisdictional issues required further consideration.
No new precedent was established by this decision. The direct consequence is that the Plaintiff's direct discrimination claim against Company A is dismissed, while certain other claims remain to be reconsidered by the Employment Tribunal.