Background: 

The respondent is a qualifications body for actuaries in the United Kingdom. The claimant was a student member of the body.  He claimed that he was subject to race discrimination as a British national in relation to the respondent’s arrangements for conferring its qualifications. This was on the basis that the respondent provided two opportunities per year to sit the exam but it also recognised other associations in other countries, such as the Indian Actuarial Institute (IAI) which also gave two opportunities per year. A student member of the Indian Actuarial Institute could also be a member of the respondent and therefore have four opportunities per year, rather than two. The principal issue being that the Indian Actuarial Institute did not permit UK nationals to join which affected the claimant as he was only able to take the exam twice per year. 

Outcome: 

At first instance, the Tribunal upheld the complaint of direct race discrimination.  It stated this was direct but it could also be indirect if Indian Actuarial Institute membership was the key difference which could be an exact proxy for race. This was appealed to the EAT by the respondent and the appeal was allowed. This led to the claimant appealing to the Court of Appeal. 

The Court of Appeal agreed with the EAT and held that the Tribunal had erred. It was not treatment of the respondent in determining whether the individual had four attempts or two attempts per year. They had no say over when the Indian Actuarial Institute held their exams or who could take them. The respondent gave all of its student members the same opportunity, that being two attempts, and that was regardless of their nationality. The Court of Appeal further stated that the Tribunal erred in allowing the claimant to choose his comparator. There was a clear material difference between the claimant and an Indian national who was able to be a member of both the IAI and the respondent.  A comparison between those two could not clarify whether the treatment was because of their race. 

Practical Guidance for Employers: 

The Court of Appeal looked at this from what the respondent could control as to whether there was race discrimination. The Tribunal, however, had looked at the impact it had had on the individual claimant. The fact that the respondent in this case could not control the other organisation which did not permit the claimant to take the exam clearly demonstrated how they would not be liable for the discrimination as they were providing the opportunity to take the exam twice per year for all regardless of nationality.  

https://www.casemine.com/judgement/uk/674dfcc58e6716384cb33ca1