Prospect won its claim that the current Home Office promotion procedure is unlawful indirect discrimination on the grounds of race and age. The department has now announced that it will change its promotion procedures.
The union's case, taken at an Employment Tribunal on behalf of Home Office technical specialist Graham Dean, argued that the promotion procedure had an unjustifiable disproportionate adverse effect on black and minority ethnic (BME) candidates and on staff aged over 34.
Mr Dean had worked for the Home Office for over 11 years. His appraisals were excellent throughout and his managers had repeatedly recommended him for promotion.
For promotion to certain middle management grades – level H and grade 7 - candidates had to pass a Core Skills Assessment (CSA) which is meant to test general competencies for the higher grades. Mr Dean had sat and failed the CSA on four occasions, so despite his glowing recommendations he could not be promoted.
The Home Office unions (Prospect, PCS and the FDA) had argued for some time that the CSA was discriminatory, because success rates showed that a significantly smaller proportion of BME employees and those 35 and older passed the test.
Indirect race or age discrimination is, briefly, where:
- an employment practice puts people of a particular race or age group at a disadvantage compared to others
- an individual worker is affected by that disadvantage, and
- the employer cannot show it is a proportionate means of achieving a legitimate aim.
The tribunal found that the selection rates for BME and older candidates were lower and represented a significant differential impact. Mr Dean had been disadvantaged as he had not been promoted as a result of the use of the CSA. They further found that the CSA was not a proportionate means of achieving a legitimate aim.
After the judgment the Home Office accepted that Mr Dean could apply for promotion without sitting the CSA. He was interviewed for a post and was promoted in September.
However, the department continued to use the CSA in respect of other candidates for promotion. A number of new ET cases have already been submitted by both Prospect and PCS, and the unions have continued pressing for the CSA to be scrapped.
In November, a remedy hearing was held to agree the compensation award for Mr Dean. The following day the Home Office announced that from January 2013 the CSA for promotion to H level posts will be scrapped, and replaced by a 'light touch set of online tests'. The existing CSA for Grade 7s will continue until April 2013, then be replaced with a modified version.
"This case demonstrates the power of combining litigation with union collective negotiations," said Prospect legal officer Marion Scovell. "It also shows the determination and commitment of one union member to fight his case to achieve a much fairer system for all."
The case of Dean v the Home Office was heard in the Watford Employment Tribunal in June 2012, with the remedy hearing in November 2012. The tribunal heard evidence from a number of witnesses: Mr Dean himself; an independent expert witness commissioned by Prospect; the union branch secretary; and a Prospect full-time negotiator. Nicola Braganza, a specialist discrimination barrister instructed by Prospect, represented Mr Dean at the hearing.
Photograph shows L-R (Prospect legal officer Marion Scovell, Graham Dean, Prospect negotiator Dave Allen, Prospect branch secretary Paul Farr, barrister Nicola Braganza)