The Employment Appeal Tribunal (EAT) has held in Institute and Faculty of Actuaries (IFA) v Davda that the tribunal was wrong to find that the organisation was guilty of race discrimination with regard to the arrangements it offered to some student members from certain countries. Instead of comparing UK and Indian nationals, it should have compared UK and all non-UK national IFA members.
Basic facts
After graduating from Kings College London, Mr Davda joined the IFA (the qualifications body for actuaries in the UK) as a student member. Although he repeatedly failed the institute’s examinations, he was granted certain exemptions because he had passed the equivalent exams as part of his degree.
The IFA also granted certain exemptions to students from other countries, such as India. In addition, it allowed student members of the Indian Actuarial Institute (IAI) to join both the IFA and the IAI. This meant they could potentially take the equivalent examination four times a year, whereas IFA members could only take it twice a year.
Although it was not absolutely clear whether UK citizens could join the IAI, there was evidence that the IFA had an informal “understanding” with the IAI which prevented UK nationals from becoming members. Indeed, when Mr Davda tried to sign up in September 2017, he was prevented from doing so ostensibly because of his UK citizenship.
Mr Davda lodged tribunal proceedings arguing that, as he could not join the IAI and could, therefore, only sit the exams twice a year, he had been treated less favourably compared to a hypothetical Indian student member which amounted to direct race discrimination. Alternatively, he argued that he had been subject to indirect race discrimination because he was only offered two exam sittings per year by the IFA.
Tribunal decision
The tribunal agreed with Mr Davda that although there was no formal agreement between the two organisations, there was an ongoing “understanding” between the IAI and the IFA that the Indian Institute would not admit UK nationals.
It concluded that the IFA had directly discriminated against Mr Davda, a British national, on the ground of race in respect of the number of opportunities it gave him to pass examinations to qualify as a fellow of the IFA, compared to the number of opportunities it gave to Indian nationals.
In addition, it found that under sections 111 and 112 of the Equality Act, the IFA was guilty of “instructing, causing or inducing” the IAI to discriminate against Mr Davda with regard to the arrangements it had made for deciding who should be awarded “a relevant qualification”.
The IFA appealed arguing that Mr Davda’s claim was against the IAI, not the IFA; and that it was perverse to find that the IAI did not allow UK nationals to join the organisation.
EAT decision
Allowing the appeal, the EAT held firstly that the IFA had not directly discriminated against Mr Davda in terms of the increased opportunities it gave to Indian nationals to pass exams as this was not something under its control. Nor could it control who could or could not join the IAI. The finding that the respondent had “subjected the claimant to direct race discrimination by directly or indirectly instructing, causing, inducing and or aiding the IAI not to admit British nationals as students” was made in error of law and was unsafe. Even if it could be shown to be less favourable treatment, there was no evidence to show that IAI membership was limited to Indian nationals, even if UK nationals were excluded.
With regard to his claim of indirect discrimination, the EAT held that the tribunal had adopted the wrong pool for comparison. Instead of comparing UK and Indian nationals, it should have compared UK and all non-UK national IFA members.
In any event, even if UK nationals could only take the exam twice a year whereas those in the comparator group could take them four times, the EAT pointed out that UK nationals could still obtain exemptions from other organisations with whom the IFA had a reciprocal exemption arrangement.
Comment
The case highlights the importance that evidence plays in employment tribunal claims. In this instance, there was no evidence to show that the opportunities the IFA gave to Indian nationals was under its control. Nor did it control who could or could not join the IAI. In addition, there was no evidence that IAI membership was limited to Indian nationals, meaning that a claim of direct discrimination could not succeed.
This case also highlights the importance of identifying the correct pool for comparison in claims of indirect discrimination. In this instance, the correct pool for comparison was all UK and non-UK national IFA members. The pool was not limited to UK and Indian nationals.