Expert Witness Journal Issue 65 February 2026 - Flipbook - Page 79
Is DEI a PCP?
by Peter Crowley, Winsdor Actuarial Consultants Ltd
man with a rainbow jumper o昀昀ering his services as a
“LGBT Ally”) - but the reality is often very di昀昀erent.
The Anne Giwa-Amu case shows a shocking
combination of racism and managerial neglect.
To 99.9% of the population , the word “Essop” will
mean nothing, yet it was a landmark employment
case in the England and Wales Court. Lady
Hale (she of the spider brooch and preventer of
proroguing fame) decided that the civil service
method of choosing people for promotion was
indirect discrimination. In brief (and certainly not
legal advice here!), applicants for promotion had
to pass a test to see if they would make good civil
servants. They then had to pass another test to see
if they could do the job. BAME and older people lost
out disproportionately on the 昀椀rst test.
To 昀椀ll in the gaps, a “PCP” is Provision Criterion or
Practice – a formal or informal rule that an employer
puts in place that may or may not discriminate if
certain groups of employees lose out. A feature
of the “Essop” case was a statistical report - which
opined that the chances of the civil servanty test not
being discriminatory was less than 1 in 1,000. My
calculations agreed this 昀椀gure.
Lady Hale ruled that that the 昀椀rst test was
discriminatory – how “civil servanty” you were
had no bearing on whether you could do the job.
The civil service had tried to say “prove the test
discriminates”, then disclosed at a very late juncture
advice they had received to say that it probably did.
A statistical report stated the rejection pattern was
very hard to justify. They 昀椀nally coughed up £1
million.
DEI programmes often require the anonymisation
of new recruits into an organisation, but it is not
a major focus (possibly because HR, who manage
DEI, are personally responsible for supervising
recruitment, (and have done permanently)). A new
book by Keon West, published in Jan 25, illustrates
the results of some surveys (US, UK, Aus) where
identical CVs were submitted, the only di昀昀erence
being a white or ethnic name, and the numbers of
o昀昀ers were analysed for each group. Mr West applies
a basic test to assess signi昀椀cance, but I have followed
the method used in Essop (I believe). Results are as
follows:
To anyone why as looked at civil service departments
in the context of DEI, (Diversity, Equity and
Inclusion), this might come as a surprise. They all
swear by it – the MoD probably coming top with a
Survey
Country
Number of Applications
Probability of the result NOT being racist
Devah Pager
US
350
1 in 426,000
B&M*
US
5,000
1 in 35
King
US
155
1 in 3
PWB
US
340
1 in 3.5 million
BLV
AUS
4,000
1 in 166
K&D
US
1,600
1 in 1.8 billion
D&H
UK
3,200
1 in 1.2 million
Quite a range!
EXPERT WITNESS JOURNAL
77
FEBRUARY 2026
