in person For the v Respondent — 2017

The claimant, who was British and of Indian heritage, applied for an Immigration Liaison Officer posting overseas and was offered New Delhi after interview. He accepted the posting and completed the security questionnaire supplement listing 37 relatives. On 30 January 2017 he was told the posting would not go ahead because of family connections / extensive family connections, and the tribunal treated the refusal of the posting as the operative decision.

On the direct discrimination claim, the tribunal held that Mr Sowerby's decision was not confined to the number of relatives disclosed. It found that his reasoning went further and included assumptions about conflict of interest and divided loyalty linked to the claimant's country of origin / Indian ethnic origin. The tribunal concluded that race was a material reason for the treatment and that the respondent did not establish its explanation. It accepted that section 192 Equality Act 2010 was engaged because the concern related to disclosure of classified information, but held that the defence failed.

On the indirect discrimination claim, the tribunal proceeded on the basis that the relevant PCP was the refusal to post an individual where the security questionnaire disclosed extensive family connections in the proposed country of posting, which in practice turned on the number of relatives rather than their closeness. It accepted that employees of Indian ethnicity were more likely to have relatives in India and therefore suffered a group disadvantage, and that the claimant suffered the same disadvantage. The tribunal held that the stated aims included security, external pressure, conflict of interest, and duty of care, but found the measure was not a proportionate means of achieving a legitimate aim and was not reasonably necessary. Remedy was not determined in this judgment.