Mr U Butt v Northern Care Alliance NHS Foundation Trust: 6004669/2024
EMPLOYMENT TRIBUNALS
Case No 6004669/2024
Between
Mr U ButtClaimantNorthern Care Alliance NHS Foundation TrustRespondent
Before
Employment Judge KM RossMs Owusu-Agyei (instructed by counsel) for claimantMr Menon (instructed by counsel) for respondentDate 28 January 2026
JUDGMENT
The relevant pool for comparison in the claimant’s claim for indirect race discrimination pursuant to s19 Equality Act 2010 is:(1) The relevant pool for PCP1 : of allowing interview panels to depart from the scoring threshold for appointable candidates when deciding whether to appoint a candidate, is all the Respondent’s employees and or colleagues/candidates who represent the data underlying Table 1 of the Respondent’s 2023 WRES data (and the same for the Respondent’s 2024 WRES data,)(2) The relevant pool for PCP 2: of permitting the interview panel not to appoint in circumstances where the candidate met the scoring threshold for appointment is all of the Respondent’s candidates who have met scoring thresholds for appointment.(3) The respondent is granted permission to rely on a witness statement from Mr Daniel Saunders. Any statement from Mr Saunders (if not already disclosed) should be disclosed within 28 days of the date this order is sent to the parties.(4) If the respondent seeks permission to disclose any other additional witness statement it must make a further specific application to the Tribunal, naming the witness and giving reasons why an application is being made. Blanket permission for unidentified witnesses is not granted.
REASONS
[1]This hearing was listed by Employment Judge Aspinall to determine the correct pool for comparison in the claimant's claim for indirect race discrimination because the parties are not able to agree the correct pool.
Background
[2]The claimant is a British Asian Consultant Orthopaedic Surgeon. He applied for a post as Chair of Division for Surgery, a non-clinical role. He was shortlisted, sifted through a Stakeholder Panel of 8 decision makers, then on 23 January 2024 considered by a panel of three decision makers Dr Kellet, Ms Bailey and Dr Saunders, achieved a threshold score to be appointed and says he was told that it was 99% likely that he would be appointed but on 2 February 2024 received an automated email telling him he was not appointed. Some months later a white British doctor was appointed.[3]The procedural history to the case is not straight forward. There have been previous preliminary Hearings before Judge Dunlop and Judge Aspinall. Full details are to be found in their case management orders.[4]In brief, the claimant who had originally brought his claim as a claim for direct race discrimination pursuant to section 13 Equality Act 2010 was given permission to amend to include a claim of indirect race discrimination pursuant to section 19 Equality Act 2010 and the respondent was granted leave to file an amended response. Purpose of this Hearing[5]Identifying the pool, if any, for the indirect discrimination complaints[6]Making case management orders about disclosure that flow from the determination of the pool and preparation for final hearing generally pose of this hearing[7]It was also agreed I would determine the application of the respondent to be permitted to adduce evidence from Mr. Saunders and potentially other witnesses for the respondents. Documents[8]I had an agreed bundle of documents of 272 pages, a skeleton argument from each council and a file of authorities from the claimant’s representative. I had the benefit of a witness statement from Lindsay Hellewell of the respondent, which I read, which explained the respondent’s letter at p268-271 but I did not require Ms Hellewell to give evidence as I deemed it unnecessary. The pool[9]I turned first to consider the key issue which was identifying the pool if any for the indirect race discrimination claim.[10]I reminded myself of how the claim is now put by the claimant with regard to the section 19 claim.(a) The Respondent operated a PCP of allowing interview panels to depart from the scoring threshold for appointable candidates when deciding whether to appoint a candidate.(b) The Respondent operated a PCP of permitting the interview panel not to appoint in circumstances where the candidate met the scoring threshold for appointment.(c) This puts non-white candidates to a particular disadvantage because: i) Subjective criteria is more likely to be subject to unconscious or subconscious bias than objective criteria. ii) White candidates at the Respondent are more likely to be appointed compared to BME candidates: In 2023, white candidates at the Respondent were 1.86 times more likely to be appointed compared to BME candidates. White candidates at Salford Care Organisation were 2.05 times more likely to be appointed compared to BME candidates. . In 2024, white candidates at the Respondent were 1.73 times more likely to be appointed compared to BME candidates. White candidates at Salford Care Organisation were 1.93 times more likely to be appointed compared to BME candidates.” White candidates at the Respondent are 1.86 times more likely to be appointed compared to BME candidates.(d) the claimant was put to that disadvantage because he was not appointed.[11]I reminded myself that the relevant law is a section 19 Equality Act 2010. It states:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) It puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.[12]I had regard to the well-known helpful authorities supplied by the claimant’s representative: Essop v Home Office (UK Border Agency) & Naeem v Secretary of State for Justice 2017 IRLR 558, Allen v Primark Stores Ltd 2022 IIRLR 644 and Lea v Greater Manchester Police Authority 1990 IRLR 372 and the EHRC Code of Practice at 4.15-4.22[13]Before considering the issue of the pool, I reminded myself of the helpful guidance of Lady Hale about indirect discrimination in Homer v Chief Constable of West Yorkshire Police , 2012 IRLR 601 when she stated: ''The law of indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic … The resulting scrutiny may ultimately lead to the conclusion that the requirement can be justified”.[14]I remind myself that all 4 components of s19 must be met for a successful indirect discrimination claim. There must be a PCP which the employer applies or would apply to employees who do not share the protected characteristic of the claimant; that PCP must put people who share the claimant’s protected characteristic at a particular disadvantage when compared with those who do not share that characteristic; the claimant must experience that particular disadvantage; and the employer must be unable to show that the PCP is justified as a proportionate means of achieving a legitimate aim. It is for the claimant to adduce facts to satisfy the first three requirements. The burden then passes to the respondent to satisfy the fourth requirement.[15]In Essop v Home Office; Naeem v Secretary of State for Justice 2017 IRLR 558 Lady Hale stated ''Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead, it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment – the PCP is applied indiscriminately to all – but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot.''[16]I turn to this case.[17]The claimant relies on 2 PCPs which are: 1. The Respondent operated a PCP of allowing interview panels to depart from the scoring threshold for appointable candidates when deciding whether to appoint a candidate. 2. The Respondent operated a PCP of permitting the interview panel not to appoint in circumstances where the candidate met the scoring threshold for appointment.[18]It is the claimant’s case that the relevant position he was applying for in the Respondent’s Trust was a non-clinical role. It was therefore governed by the recruitment procedure at 236-65 in the bundle. (The claimant’s representative explained that clinical roles attract a different recruitment procedure, and the respondent did not suggest that the clinical recruitment procedure was relevant here.)[19]The claimant says the recruitment procedure is silent on any guidance about deciding how to appoint to a non-clinical role. It says therefore appointment panels are free to apply PCP1 and 2.[20]So far as group disadvantage is concerned the claimant relies on the Trust’s own statistical data produced for NHS England in annual Workforce Race Equality Standard reports p139-141. As set out in the Claimant’s amended grounds of claim, white candidates at the Respondent Trust are more likely to be appointed compared to black and minority ethnic candidates p119.[21]The individual disadvantage is the claimant was not appointed to the post.[22]The respondent says in its amended response the claimant has not identified any provision, criterion or practice (PCP) applied by the Respondent. It says although pleaded as two separate PCPs, the effect of the PCPs appears the same, namely an interview panel’s ability to appoint candidates irrespective of any scoring threshold.[23]Although the submission of Mr Menon for the respondent seemed to suggest that the respondent may accept PCP 1 applied, the formal position in the amended response of 2.9.25 at p137-8 states the Respondent denies implementing such PCPs and says the circumstances relied upon by the claimant, being his own recruitment process in January 2024 was a one-off departure from the Respondent’s usual recruitment process and does not represent the Respondent’s established recruitment practices. It states the interview panel’s decision-making process in the Claimant’s case was in direct response to the requirements of the specific vacancy being recruited to such that it was unique to his circumstances. The pool for comparison.[24]The purpose of indirect discrimination legislation is to challenge those employment practices which are ostensibly neutral but have a greater disadvantageous effect on the protected group.[25]The wording of s19 makes it clear that a comparative analysis is needed to prove particular disadvantage within the meaning of s19 (2) (b): it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it.[26]Although identification of a pool is not essential, the EHRC guidance makes it clear it is an appropriate method. See EHRC 4.15 “The comparative approach: Once it is clear that there is a provision, criterion or practice which puts (or would put) people sharing a protected characteristic at a particular disadvantage, then the next stage is to consider a comparison between workers with the protected characteristic and those without it. The circumstances of the two groups must be sufficiently similar for a comparison to be made and there must be no material differences in circumstances.”[27]The pool for comparison is not easy to decide. Sedley LJ in Eweida v British Airways 2010 IRLR 322, CA said 'the isolation of “pools” within which the proportion of disadvantage could be gauged [was] a task which defeated three decades' judicial attempts to find a workable formula'.[28]In Allonby v Accrington and Rossendale College, 2001 ICR 1189 it was held that the choice of pool must be logically defensible.[29]In Essop v Home Office (UK Border Agency) & Naeem v Secretary of State for Justice 2017 I.R.L.R. 558. Lady Hale said: “…all the workers affected by the PCP in question should be considered. Then the comparison can be made between the impact of the PCP on the group with the relevant protected characteristic and its impact upon the group without it. This makes sense. It also matches the language of s.19(2)(b) which requires that ‘it’ – ie the PCP in question – puts or would put persons with whom B shares the characteristic at a particular disadvantage compared with persons with whom B does not share it. There is no warrant for including only some of the persons affected by the PCP for comparison purposes. In general, therefore, identifying the PCP will also identify the pool for comparison.”[30]So I start by considering: who are all the workers affected by the PCPs? PCP 1. Of allowing interview panels to depart from the scoring threshold for appointable candidates when deciding whether to appoint a candidate The claimant says for PCP 1 that those affected are all the Respondent’s employees and or colleagues/candidates who represent the data underlying Table 1 of the Respondent’s 2023 WRES data (and the same for the Respondent’s 2024 WRES data). The claimant says that data was produced for all the Trust’s employees. PCP2. Of permitting the interview panel not to appoint in circumstances where the candidate met the scoring threshold for appointment. The claimant says this affected are all of the Respondent’s candidates who have met scoring thresholds for appointment.[31]Given the way each PCP is worded “ allowing interview panels to depart from the scoring threshold..” and “ permitting the interview panel not to appoint in circumstances where the candidate met the scoring threshold for appointment” ( my italics) and given the lack of any written guidance in the respondent’s recruitment policy in these circumstances, if this is a PCP which was applied by the respondent ( and that is a matter for the final tribunal) that it is logical that it must be applicable to everyone who applied for a non-clinical position with the respondent as represented in the data underlying Table 1 of the WRES data and all the respondent’s candidates who met the scoring thresholds in appointments. I refer to non-clinical staff because it is agreed a different policy applies to clinical roles.[32]The respondent reminds me there must be no material difference in circumstances. That is true. But as Allen v Primark 2022 EAT 57 reminds me, I will fall into error if I consider material circumstances of the group being compared on a re-defined basis of the PCP.[33]The respondent says the pool for comparison should be candidates attending interviews between April calendar years 2023 and April 2024 for senior medical leadership Chair of Division or equivalent roles in the Salford Care Organisation (SCO) at the Trust in circumstances where interview panels departed from scoring thresholds in reaching their decision not to appoint the sole candidate for PCP 1.[34]For PCP2 the respondent says the pool for comparison is the candidates who were the sole two applicants for senior medical leadership Chair of Division or equivalent roles in the Salford Care Organisation (SCO) at the Trust and, who despite meeting the minimum threshold, were not appointed following interviews between April calendar years 2023 and April 2024.[35]I am not satisfied, when considering the PCPs that these pools for comparison advanced by the respondent are logical and flow from the claimant’s PCPs.l consider if the pools were drawn in this way there is a danger re writing the PCPs the claimant wishes to bring.[36]The respondent raises issues about the difficulties of disclosure of documents if the pools for comparison are identified as the claimant wishes to identify them as stated. See respondent’s letter at p268-271.[37]Firstly, I am not satisfied that issues about difficulties with disclosure is a reason to narrow the pool to those the respondent says are correct.[38]It is unfortunate as described in the respondent’s letter at p 232 that the data under pinning the Workforce Race Equality Standard Reports is no longer available. (WRES). However, I remind myself that as described in Essop, the claimant is not required to establish the reason for the particular disadvantage to which the group is put. “In order to succeed in an indirect discrimination claim, it is not necessary to establish the reason for the particular disadvantage to which the group is put. The essential element is a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual. This may be easier to prove if the reason for the group disadvantage is known but that is a matter of fact, not law.”[39]Secondly the claimant’s representative made it clear today that when seeking to establish the PCP and group disadvantage the claimant does not request the respondent to try to find the records of everyone who was interviewed for every position in 2023 or 2024. I am satisfied given the size of the Trust’s work force such a task would be an overly onerous and a wholly disproportionate burden especially for a public body. Also, for the reasons identified by Mr Menon as set out in his instructing solicitor’s recent letter such efforts are unlikely to produce anything more than an incomplete and fragmented picture.[40]Counsel for the claimant said as a matter of law, from the claimant’s perspective, disclosure of documentation relating recruitment of every position in the Trust in the period 2023 to 2024 is not required or sought.[41]I also remind myself, having regard to the respondent’s objections to the pool for comparison that it is not necessary for everyone in the pool for comparison to be part of the disadvantaged group.[42]It is also not for me to decide whether or not the claimant is able to show group particular disadvantage, that is a matter for the final hearing.[43]Therefore, in conclusion when considering the relevant pool for comparison relevant to the final hearing, I find the pools identified by the claimant are the relevant pools as set out in this judgment. Witnesses[44]I grant the respondent permission to rely on a statement of Daniel Saunders. He is clearly a witness who can give relevant evidence as he was one of the decision makers. It is unfortunate his witness statement was not provided previously but I accept there has been a complicated history to this case with the claim being amended more than once.[45]When considering the balance of prejudice I am satisfied there's no significant prejudice to the claimant because the final hearing is not until August 2026. However, there is potentially significant prejudice to the respondent if Mr Saunders is not permitted to give evidence.[46]I do not give blanket permission for further as yet unnamed witnesses to give evidence. If the respondent wishes to adduce further witness evidence, it must name the witness and make the appropriate application. Case Management.[47]I am keen to ensure this case proceeds to finally hearing on the listed dates at the end of August.[48]In order to ensure that this occurs, I have listed a further hearing for case management on Thursday 2 April 2015 at 2.15pm.[49]If the parties are able to agree a final list of issues, dates for compliance for case management orders necessary for final hearing, namely for exchange of documents and final bundle , they may write to the Tribunal on a joint basis to vacate the date for the case management hearing.[50]If the parties are unable to agree directions, they must submit a joint agenda with the areas of disagreement identified.[51]I re-iterate that for the reasons set out above disclosure on the basis suggested by the respondent in their letter 20 January 2026 is not necessary or proportionate to the issues in the case. Approved by: