EAT rules on indirect race discrimination in Mr. J Logo v Payone GmbH & Ors [2024] case

Citation: [2024] EAT 9
Judgment on

Introduction

In the notable case of Mr. J Logo v Payone GmbH & Ors [2024] EAT 9, the Employment Appeal Tribunal (EAT) dealt with key legal principles concerning indirect race discrimination under the Equality Act 2010 (EQA). The case centered on the claimant’s allegation that certain practices of the respondent employer, namely the use of the German language in business operations, constituted indirect race discrimination against him as a Black British employee. This article analyzes the EAT’s judgment, focusing on the legal principles applied, and highlights the key topics discussed in the case.

Key Facts

The claimant, Mr. J Logo, was employed by Payone GmbH, a European payment provider whose internal business primarily operated in German. After certain practices advantaged German-speaking employees over English-speaking ones, Logo brought claims of indirect race discrimination against Payone GmbH, contending that the requirement for German language proficiency put him at a particular disadvantage. The Employment Tribunal (ET) initially struck out Logo’s claims, concluding that Payone GmbH would likely establish justification for their practices.

At the heart of Mr. J Logo’s appeal were principles relating to indirect discrimination under section 19 of the EQA. Indirect discrimination occurs when a provision, criterion or practice (PCP) applied by an employer has the effect of disadvantaging a group of people who possess a particular protected characteristic, as well as the individual claimant, unless the employer can justify this as a proportionate means of achieving a legitimate aim.

The EAT, presided over by His Honour Judge James Tayler, highlighted several critical legal principles and tasked the ET with the proper application of these principles in determining the presence of indirect discrimination:

  1. Objective Analysis: There must be an objective balance between the discriminatory effect of the PCP and the reasonable needs of the employer. The evaluation must be critical, thorough, and demonstrate that the principle of proportionality has been properly applied.

  2. Legitimate Aims and Proportionality: According to established case law, including Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15 and the decision in Bilka-Kaufhaus GmbH v Weber Von Hartz (Case 170/84), the employer’s aim must be legitimate and non-discriminatory in itself. Moreover, the means of achieving this aim must be both appropriate and reasonably necessary, with a robust analysis examining the working practices and business considerations.

  3. Marginal Appreciation and Own Judgment: The EAT emphasized, as seen in Hardys & Hanson plc v Lax [2005] EWCA Civ 846, that the Employment Tribunal must make its own judgment rather than granting a margin of appreciation to the employer.

  4. Evidence and Justification: The tribunal must look for evidence rather than mere assertions when justifying a discriminatory measure. The evidence required should provide an objective basis to support the claim of proportionality, considering both the impact on legitimate aims and the difficulty in isolating causative effects, as explored in Pitcher v University of Oxford [2022] I.C.R. 338.

  5. Strike out Guidance: According to Malik v Birmingham City Council UKEAT/0027/19, striking out a discrimination claim is a drastic measure and should only occur in the clearest of cases.

Outcomes

The EAT ultimately allowed the appeal on the grounds that the matter was not suitable for a strike out. The EAT found that the Employment Tribunal had granted the employer too much latitude, and the appeal highlighted the need for a full hearing where evidence could be critically evaluated and challenged. The EAT remitted the case back to a different Employment Tribunal for a merits hearing in line with the legal principles cited.

Conclusion

The case of Mr. J Logo v Payone GmbH & Ors serves as a significant reminder of the rigorous legal framework surrounding indirect discrimination claims within the UK’s employment law jurisdiction. It underscores the courts’ responsibility to thoroughly assess the justification claims of employers without pre-emptively dismissing the potential for indirect discrimination. The EAT’s decision emphasizes the need for a careful and meticulous balance between an employer’s business needs and the discriminatory effect of its practices on employees sharing a protected characteristic.