- The EAT erred in law in holding that the Respondent did not subject the Claimant to less favourable treatment. (Ground 1)
- The EAT erred in law in not holding that membership of the IAI and the protected characteristic of nationality corresponded, so that membership of the IAI was a proxy for nationality (James v Eastleigh Borough Council). (Ground 2)
- The EAT erred in law in criticising the ET’s choice of comparator. (Ground 3)
Factual Background
Mr Roopesh Davda (the Claimant) is a British citizen who graduated in 2000 with a BSc in Mathematics from Kings College London. He was 40 at the date of the Tribunal hearing and a student actuary of the Institute and Faculty of Actuaries (the Respondent), having joined in 2001 and taken his first actuarial examination in April 2002. The Claimant had been sitting the Respondent’s exams for 15 years, but had not passed the exams required to become an Fellow of the Respondent.
The Respondent is the qualifications body for actuaries in the UK. There are other actuarial professions in other countries in the world, including the Institute of Actuaries of India (IAI). The Respondent had concluded a number of Mutual Recognition Agreements (MRA) with overseas qualifications bodies. The Respondent and the IAI had concluded a MRA and the Respondent therefore recognised passes in IAI examinations as direct equivalents of passes in the Respondent’s corresponding examinations.
The Respondent sets examinations twice a year and the IAI also sets exams twice a year, but not on the same days. It was not in dispute that Indian student members of the IAI could sit IAI exams in the UK and also be student members of the Respondent and sit the Respondent’s exams. Therefore, in theory, an individual who was a member of both the Respondent and the IAI could sit the same examination on four occasions in one year, taking four chances to pass that exam.
Claims brought by the Claimant
The Claimant brought, amongst other things, a claim against the Respondent contending that the Respondent had directly discriminated against him because of his British / UK nationality contrary to s. 13 and 53 Equality Act 2010 (EqA).
The Claimant’s case was that he was treated less favourably than a hypothetical Indian student member of the Respondent because the Indian student member had the opportunity to join the IAI and sit exams which are recognised by the Respondent and for which exemptions are given, whereas a UK national did not. Such an individual therefore had more opportunities to pass the exams to qualify as a Fellow of the Respondent.
The Respondent contended that the correct comparator was a hypothetical non-British student of the Respondent who was in materially the same circumstances as the Claimant, amongst other things, not being a student member of IAI.
It was not in dispute that members of the Respondent, in general, could also be members of the IAI, but it was in dispute whether UK nationals, who were student members of the Respondent, could also be student members of the IAI.
The Respondent therefore contended that the Claimant’s claim was not properly against it, but rather against the IAI, and that (in so far as it was found that there was less favourable treatment) it was not the Respondent who treated the Claimant less favourably.
The Claimant however also claimed that the Respondent directly or indirectly instructed caused, induced and/or aided the IAI not to admit British nationals as students. The Respondent contended the Tribunal did not have jurisdiction to hear this complaint as it was not capable of falling under s. 53(1)(a), (b) or (c) EqA.
Findings of the ET
The ET found that the Respondent granted automatic exemption from the Respondent’s corresponding examination as IAI exams were treated as direct equivalents and passing an exam effectively meant passing the Respondent’s exam. (paras 42, 134, 137-138 ET Decision)
The ET also held that although the Respondent had no bar to membership by students from other countries around the world, the IAI did have a policy of not allowing UK nationals to join it. This policy was applied to the Claimant. The Claimant therefore only had two opportunities to sit relevant exams in one year, when Indian nationals potentially had four opportunities. (paras 47-48, 72, 80, 134 ET Decision)
In light of these findings, the ET held that the Respondent provided two additional opportunities to pass its own examinations to IAI members. However, membership of the IAI was not available to UK nationals and as such UK nationals could never sit those exams. The ET therefore held that there was an exact correspondence between the protected characteristic (non-UK nationality) and reason for the treatment (student membership of the IAI) – as envisaged for by James v Eastleigh Borough Council [1990] ICR 554. (paras 135-138 ET Decision)
In respect of the hypothetical comparator, the ET accepted that the Claimant was entitled to choose his comparator and considered that an Indian national student member of the Respondent was in the same material circumstances as the Claimant, who was also a student member of the Respondent. (para 132 ET Decision)
Consequently, the ET found that the Respondent treated the Claimant less favourably than Indian nationals when it gave exemptions for exams set by the IAI because the Claimant, who was a UK national and was barred from joining the IAI because of his nationality, was unable to sit those exams and gain those exemptions. (para 141 ET Decision)
Appeal to the EAT
The Respondent appealed to the EAT[1] which held, amongst other things, that the ET had misidentified the treatment afforded to the Claimant by the Respondent, erred in concluding there was James-type exact equivalence and erred in its identification of a comparator. (para 51 EAT Decision)
- Although the ET identified the treatment that the Respondent afforded to the Claimant and his comparators as ‘the number of opportunities it gave to pass examinations’; the EAT did not accept that where the IAI allowed their students to undertake examinations, that was treatment afforded by the Respondent. The fact that passing an IAI examination resulted in a student obtaining an Individual Exam Exemption (IEE) did not mean that it was the Respondent that had permitted IAI students to take the examinations of the IAI. (para 46 EAT Decision)
- The EAT further held that even if that could be considered to be treatment by the Respondent, there was no exact correspondence between membership or non-membership of the IAI and Indian nationality: ‘[t]here will be Indian student members of the respondent who have not joined the IAI, or who are student members of the IAI but have not taken and/or passed any examinations that would provide an IEE. There will also be UK Nationals who have obtained IEEs from bodies other than the IAI. Again, exact correspondence is not established between obtaining IEEs and nationality’.(para 48-49 EAT Decision)
Consequently, the EAT found that the Claimant had not been subjected to direct race discrimination by the Respondent. (para 67 EAT Decision)
Appeal to the Court of Appeal
The Claimant then appealed to the Court of Appeal. The central question before the Court of Appeal was whether the ET had erred in law in its approach. (para 4 CA Decision)
The Court of Appeal dismissed the appeal on the basis that the ET did err in law in holding that giving opportunities to pass exams was ‘treatment’ by the Respondent, and that that treatment was on the grounds of the Claimant’s nationality. It held that the EAT was therefore right to set aside the ET’s fining of direct discrimination and to substitute for it a finding that the Respondent had not discriminated directly against the Claimant. (para 5 CA Decision)
In respect of ground , there was an issue as to whether the Claimant could allege that the less favourable treatment complained of was the Respondent’s arrangements for giving exemptions from its exams; considering that the less favourable treatment relied on before the ET related to the number of opportunities students had to sit the exams. It was held that it was far too late for the Claimant to run this argument especially as this was not the way in which the ET had approached the direct discrimination claim in its judgment. (para 76 CA Decision)
The Court of Appeal then turned to consider the issue of whether the ET had erred in law in holding that the opportunity to take exams four times a year, rather than twice a year, was treatment by the Respondent. It noted that the Respondent had no say or control over when, or how often, the IAI held its exams. Rather, the treatment given by the Respondent to the Claimant was, simply, allowing him two opportunities to sit its exams in each year – i.e. the same opportunity given to all its student members, regardless of their nationality. (para 77 CA Decision)
The Court of Appeal concluded that because the arrangements by the IAI for holding exams were not arrangements made by the Respondent within s. 53(1) EqA that was enough to dispose of the matter. (para 77 CA Decision)
In respect of ground 2, the Court of Appeal considered the case of James v Eastleigh Borough Council [1990] IRLR 288 and agreed with the EAT that the ET had wrongly applied the case. The Court of Appeal agreed with the EAT’s reasoning and finding that the treatment (i.e. the opportunity to take the exams four times a year) was not an exact proxy for nationality. (paras 73-75, 78 CA Decision)
In respect of ground 3, the Court of Appeal also found that that ‘[t]he ET was clearly wrong to hold, in effect, that it was up to [the Claimant] to choose his comparator. S. 23(1) expressly limits the choice of comparator by providing that there must be ‘no material difference between the circumstances relating to each case’. There clearly is a material difference between an Indian national who is a member of the IAI and [the Claimant], for obvious reasons. A comparison between their cases cannot clarify whether their different treatment is because of their race, or not’. (para 79 CA Decision)
The Court of Appeal consequently found that the EAT had not erred in law in holding that the Claimant had not been subjected to direct discrimination on grounds of race. (para 81 CA Decision)
Davda v The Institute And Faculty Of Actuaries [2024] EWCA Civ 1460 – https://www.bailii.org/ew/cases/EWCA/Civ/2024/1460.html
[1] The Respondent’s grounds of appeal are recorded at paragraphs 33 to 36 of the Court of Appeal’s decision.
