Roopesh Davda v The Institute and Faculty of Actuaries

The IFA appealed to the EAT, originally on 17 grounds, some of which raised overlapping points. Eight related to claim 1, and three to claim 4. There were also four general grounds. The IFA then revised its grounds of appeal.

There were four revised grounds of appeal in relation to claim 1.

There were two grounds of appeal (8 and 9) which related to claim 4.

There is also a general ground which is relevant to this appeal. The conclusion that Mr Davda suffered less favourable treatment is said to have been perverse. This ground was explained further in five sub-grounds. Those sub-grounds in essence attacked the ET’s conclusion that a British citizen could not be a member of the IAI, and suggested that if Mr Davda had sat the IAI’s exam (the ACET) in India, he could have become a member of the IAI.

After describing the facts, the EAT said, in paragraph 9, that the resolution of a factual dispute about Mr Davda’s assertion that British nationals were not allowed to be members of the IAI ‘as a result of an agreement made with’ the IFA ‘was of considerable significance in all of the claims’. The EAT described the applications to adduce further evidence. As a result of the ET’s approach to those, there was ‘limited evidence about whether UK nationals are permitted to be members of the IAI and the precise nature of any agreement or understanding between [the IFA] and the IAI at the relevant time’. The EAT described the evidence considered by the ET in paragraphs 11-15. It quoted paragraphs 76-81 of the ET’s reasons. It summarised the ET’s view in paragraph 17: ‘…the IAI does not permit UK nationals to join’.

The EAT decided to consider claim 4 first. It described as ‘ground 9a’, the ground I have summarised at paragraph 35.1, above, and, as ‘ground 9b’, the ground I have summarised at paragraph 35.2, above. It summarised ground 9b as an argument that ‘the finding that there was an agreement [sc between the IFA and the IAI] under which there was an absolute prohibition on British Nationals joining the IAI was perverse’ (see paragraph 27 of the EAT’s judgment). It set out sections 53 and 54. The effect of sections 111 and 112 is ‘to make a person liable for discrimination carried out by another in specific circumstances’. The EAT quoted paragraph 4 of the judgment, and paragraphs 166-169 of the ET’s reasons. It referred to grounds 8 and 9 of the revised notice of appeal.

The EAT held that the ET had conflated sections 111 and 112, which are significantly different provisions.

The EAT recorded that Mr Jupp, representing Mr Davda, had accepted that section 111 could not apply to Mr Davda and that, accordingly, that part of the judgment could not be sustained. The EAT explained why in paragraph 30. For the purposes of section 111, ‘A’ is the IFA, and ‘B’ is the IAI. The ‘basic contravention’ is discrimination by a qualifications body within section 53. First, section 111(7) limits section 111 to circumstances in which the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B. In other words, the IFA must be able to commit a basic contravention in relation to the IAI, for example, by not conferring a relevant qualification on it. Mr Davda now accepted that section 111 could not apply. Second, the premise of the judgment and reasons of the ET was that there had been a basic contravention by the IFA, ‘whereas it would have to have been committed by the IAI’.

‘A’ and ‘B’, for the purposes of section 112, are also the IFA and the IAI, respectively. The EAT held that the ET had made the same mistake about section 112 as its second error in relation to section 111. Again, the ‘basic contravention’ had to be committed, not by the IFA, as the ET had held, but by the IAI. Mr Jupp had accepted that, too, but had argued that the ET had found that the IAI had committed the basic contravention by finding as a fact that the IAI had committed a basic contravention by excluding British nationals from its membership. He argued that the EAT should find that the IAI had breached section 53 (‘presumably in the arrangements it makes for deciding upon whom to confer a relevant qualification, by refusing membership to British nationals, and the IFA knowingly helped it to do so’).

The EAT thought that there were ‘considerable problems’ with that approach. It involved making a finding that a professional body in India had broken the law of the United Kingdom ‘in circumstances where it is not a party to the proceedings and has had a very limited opportunity to submit evidence’. There were considerable difficulties about procedural fairness in considering complaints under section 111 or section 112 if ‘A’ is not a respondent to the claim. It might be necessary to consider whether ‘A’ should be allowed to take part in the proceedings as having a ‘legitimate interest’ for the purposes of rule 35 of the Employment Tribunal Rules 2013.

Not enough thought had been given to the position of the IAI in the ET, ‘largely because’ the parties did not seem to have thought about it (paragraph 35). It was not clear, either, precisely what the IFA was said to have done knowingly to help the IAI to discriminate. Moreover, the judgment referred to the IFA’s acting ‘directly or indirectly’ when section 112 does not refer to ‘indirect helping’.

The EAT decided that revised grounds 8 and 9a succeeded. The EAT considered it likely that the claim under section 112 would have to be remitted to the ET. The IFA had raised the ‘fairly obvious issue of territorial jurisdiction’. Mr Jupp had accepted in a supplementary skeleton argument that that issue had not been raised in the ET and that it was too late to do so now. The EAT considered that it was an issue which it was likely to be appropriate for the ET to consider on remittal, as would be the question whether the IAI should be permitted to take part in the proceedings.

The EAT then considered ‘The finding that [the IFA] and the IAI had an agreement under which there was an absolute prohibition on British Nationals joining the IAI – ground 9b.’ It had already explained its concerns about the safety of the determination that there was an agreement between the IFA and the IAI that meant that there is an ‘absolute prohibition’ on a British national becoming a member of the IAI ‘because of the limited evidential basis for this finding, in particular, the limited scope for the IAI to provide any evidence’ when the IAI had not been a respondent, and Mr Davda asserted that it had acted unlawfully. That decision was also very significant for the claims of direct and indirect discrimination. The EAT said that it would return to the safety of that decision later (paragraph 40).

The EAT then considered claim 1. It set out paragraph 1 of the judgment and paragraphs 131-137, and 141 of the ET’s reasons, the relevant statutory provisions, and the four revised grounds of challenge (see paragraph 34, above).

The EAT did not accept that where the IAI (or any other organisation with similar agreements with the IFA) allowed students to take exams, that was treatment by the IFA. The IFA gives all students, whatever their nationality, two opportunities a year to take exams. The IAI also gave its students two such opportunities: but that was treatment by the IAI, and not by the IFA (paragraph 46).

Any difference of treatment had to be because of race or nationality. Even if the four opportunities to take exams was treatment by the IFA, there was ‘no exact correspondence’ between membership and non-membership of the IAI and Indian nationality. Not all Indian student members of the IFA will be members of the IAI. There was nothing to suggest that membership of the IAI was limited to Indian nationals, even if British nationals were excluded (paragraph 48).

The EAT added that the ET had analysed the ‘treatment’ differently in paragraph 141, when it described the treatment as the IFA giving ‘exemptions for exams set by the IAI’. That was not the treatment referred to in the judgment. In any event, not all Indian student members of the IFA would be student members of the IAI, and some who are student members of the IAI will not have taken any of the exams for which they could get an exemption. There would also be British nationals who had got exemptions from bodies other than the IAI. Again, there was no exact correspondence between nationality and getting exemptions (paragraph 49). Mr Davda had not joined any other such body or taken the opportunity to get any such exemptions himself (paragraph 50).

The EAT upheld grounds 1-3 of the revised grounds because the ET misidentified the treatment given to Mr Davda by the IFA, erred in deciding that there was ‘James type exact equivalence’ and erred in its identification of the comparator. Ground 4 fell away for the time being as the question whether the treatment fell within section 53 could only be answered once that treatment had been properly identified (paragraph 51). In paragraph 52 the EAT said that the parties would be asked for submissions on disposal. If disposal involved remittal, and the analysis on remittal relied on a total bar on British nationals joining the IAI, that raised the question of the safety of the ET’s determination that British nationals cannot join the IAI.

Paragraph 64 of the EAT’s judgment is headed ‘The finding that [the IFA] had an agreement under which there was an absolute prohibition on British Nationals joining the IAI’. The EAT repeated that, subject to argument, the case might have to be remitted to the ET. That brought ‘into focus’ the EAT’s concerns about the safety of the factual finding that the IAI had an agreement under which there was an absolute prohibition on British Nationals joining the IAI. The EAT’s provisional view, if remittal was appropriate, was that revised grounds 9b and 11 should also be remitted. It would be for the ET to manage that, including considering whether the IAI should be allowed to intervene if it wished.

Paragraphs 66-72 dealt with disposal. Having considered the parties’ submissions, the EAT held, applying Jafri v Lincoln College [2014] EWCA Civ 449; [2014] ICR 920, that there was only one realistic answer to claim 1. It should fail. The EAT substituted its decision on claim for that of the ET. The EAT did not consider that there was only one answer to the indirect discrimination claim. It remitted claim 2. It recorded that the claim under section 111 was no longer pursued. The parties agreed that the claim under section 112 should be remitted. The question whether there was a relevant agreement between the IFA and the IAI would also be remitted. The EAT accepted the IFA’s submission that that finding was challenged in the appeal. The EAT considered that that finding was unsafe. If, contrary to its flawed approach, the ET had realised that it was necessary to find a basic contravention by the IAI, it would have had to consider how that issue could be decided in a way which was fair both to the IAI and to the IFA. It would be for the ET to consider any application by the IAI for it to be joined, and whether the issue of territorial jurisdiction should be raised.

The EAT set aside paragraph 1 of the ET’s judgment and substituted a decision that the IFA had not directly discriminated against Mr Davda. It also set aside paragraphs 2 and 4 of the ET’s judgment. It remitted those claims to a different ET. It dismissed the cross-appeal.

There are five grounds of appeal.

On ground 1, Mr Jupp argued that the act of recognising the IAI and giving the exemption is the IFA’s act, not the act of the IAI. It is part of an arrangement within section 53. It was a positive act and only Indian members could benefit from it. He also pointed out that the IFA could insist, as a condition of its provision of materials to the IAI, or of its recognition of the IAI’s exams, that the IAI admitted British nationals as student members. There was no evidence that other membership bodies restricted membership on grounds of nationality. The EAT was right, up to a point, that the IFA did not do various things; but it did not matter, because the issue was who gave the exemption, and that was the IFA. That was the less favourable treatment.

Ground 2 was the heart of the appeal. It was important to distinguish between pools of comparators for the purposes of an indirect discrimination claim and groups of advantaged or disadvantaged people for the purposes of a direct discrimination claim. He gracefully acknowledged that the ET had erred in relation to the indirect discrimination claim, and that that was his fault. There was no appeal against that aspect of the EAT’s decision. The description of the advantaged and disadvantaged groups flowed logically from the choice of comparator. In most cases, such as James v Eastleigh, the choice of comparator was binary. It was different if the protected characteristic was not binary, as in a race claim. British students were disadvantaged in comparison with Indian students.

It was suggested to Mr Jupp during the hearing that the IFA’s recognition of exams was based on their equivalence with the IFA’s exams, and had nothing to do with nationality. His answer was that it was not right to look at the whole system of exemptions, but that it was necessary to look at each exemption scheme individually. It was only in cases where there is a bar based on nationality that there would be less favourable treatment. The reason for not getting an exemption in such a case would be the nationality bar. It was no different from access to the swimming pool in the James case. There was an exact correspondence between the advantaged and disadvantaged groups and the protected characteristics. There were no Indian student members in the latter group, and no British student members in the former. It was suggested to him that the premise of that assertion was that all Indian members of the IFA were also members of the IAI. Mr Jupp’s response was that the case was all about opportunity; and only Indian nationals had the relevant opportunity. The fallacy in the EAT’s reasoning was to equate the claims for direct and for indirect discrimination. The proxy rule required the EAT to look at the advantaged group and the disadvantaged group. There was the necessary correspondence with the protected characteristic. The IFA had the power of negotiation over the IAI.

He added, if I understood his argument correctly, that the EAT was wrong in paragraph 51 to suggest that the correct comparator was an Indian student member of the IFA. Mr Davda was a British national who was a student member of the IFA. His correct comparator, submitted Mr Jupp, was an Indian student member of the IFA who was also a member of the IAI. That must be the correct comparison, because if it was not, there would be a material difference between the situations of Mr Davda and of his comparator; and that would go against the statute. The very issue which was relevant to the protected characteristic could not be included in the comparison, he argued.

Mr Jupp was asked how ground 4 related to the direct discrimination claim. He said that the existence of the agreement was said by the EAT to be relevant to all the claims, and the existence of the agreement was evidence which supported claim 1. He referred to paragraph 9 of the EAT’s judgment (see paragraph 37, above). He contended that the EAT had not set aside the ET’s finding in paragraph 80 that the IAI had a policy of not admitting British nationals (see paragraph 23, above). It had set aside the ET’s finding that there was ‘an agreement/understanding’ between the IFA and the IAI. He also argued that the IFA had not, in its appeal to the EAT, challenged the finding in paragraph 80. The EAT referred to limited evidence in paragraph 10 of its judgment. In paragraph 27 (see paragraph 38, above) the EAT had misstated the scope of the ground of appeal, as it was not based on a perversity allegation. The EAT’s point about the limited evidential basis of the finding was misplaced. The IFA had had every opportunity to get evidence from the IAI or to join it and had not done so.

If his submissions were not accepted, Mr Jupp asked for permission to amend his notice of appeal to ask for permission to appeal against the EAT’s setting aside of the finding of fact by the ET in paragraph 80 of its reasons. No prejudice would be caused by that.

Mr Reade submitted that the thrust of the appeal was an attempt to shoehorn a claim for indirect discrimination into a claim for direct discrimination, and to re-cast the way in which the case had originally been argued. It was necessary to take a step back and to consider the jurisdiction of the ET conferred by section 53. He accepted that the IFA is a qualifications body. The difficulty was identifying what the relevant ‘arrangements’ were. Mr Davda had claimed in his ET1 that the direct discrimination was the number of opportunities which British nationals and Indian nationals had to take exams (two sittings compared with four). The complaint was that the relevant arrangements consisted of the IFA allowing Indian students to take four sets of exams. That was reflected in the ET’s judgment. That was unsustainable. The relevant treatment was by the IAI: it was that the IAI choses different dates for its exams from the dates chosen by the IFA. If the IAI aligned its dates with the IFA’s dates, the whole discrimination claim would disappear.

An analysis based on the recognition of the exams set by other bodies (1) was not Mr Davda’s case below, and (2) was not the basis of the ET’s judgment. In any event, the IFA based its recognition of exams set by other bodies on their equivalence to its exams, not on any other criterion, such as nationality. He drew our attention to the amendment to the indirect discrimination claim which had been allowed by the ET at the hearing (see paragraph 13, above).

Mr Jupp’s argument about the treatment ran together two things: the IAI’s policy not to admit British nationals and its policy of holding exams at different times from the IFA. Both were outside the control of the IFA, as the EAT had correctly pointed out. Lewis LJ had also been right to observe to Mr Jupp in argument that the only way of correcting this discrimination (if that was what it was) would be for the IFA to stop recognising exams set by the IAI. These difficulties could not be cured by re-formulating the claim in this court. The EAT was right that the complaint was not about ‘treatment’ by the IFA, and that the only conclusion was that the direct discrimination claim failed. If there was a claim at all (and the IFA did not accept that) it could only be a claim for indirect discrimination. Mr Reade agreed with Lewis LJ that his argument was that there was no treatment by the IFA, and that, if there was a separate issue about the recognition of exams, that had not been pleaded, but if it had been, Mr Davda would have had to prove that the position was the same with all the other relevant bodies. Mr Davda had had the chance to plead a case based on mutual recognition and had pleaded it as a claim for indirect discrimination.

If this court did not agree with that point, it came back to the decision in James. The decision to recognise the IAI’s exams was not directly aligned with the relevant protected characteristic. Mr Reade relied on Boohene v Royal Parks Limited [2024] EWCA Civ 1036; [2024] ICR 1036, an authority to which this court drew the parties’ attention before the hearing. That was an indirect discrimination claim. In that case there was an issue which was broadly similar to one of the issues here. The issue was whether the correct pool of those to be compared with the respondent’s directly employed workforce was all the respondent’s indirectly employed workforce, or just those employed by one sub-contractor (‘the Vinci-only pool’). The claimants had pleaded reliance on the former pool, but had only led evidence about the Vinci-only pool. The EAT held that the ET’s decision was flawed by its reliance on the Vinci-only pool. The EAT also refused to remit the claim to the ET because the claimants had had a chance to prove their pleaded case and had simply failed to do so. On the claimants’ appeal, this court agreed with both aspects of the EAT’s decision. Here, Mr Reade argued, that if Mr Davda’s case was that the recognition of other bodies’ exams was aligned with the protected characteristic of nationality ‘across the piece’, it was for Mr Davda to prove that. He had not done so, and this court should not remit the matter in order to give him a further opportunity to do so.

Mr Reade dealt briefly with ground 3. His submission was that Mr Jupp had been right to do likewise, as ground 3 did not help Mr Davda. An Indian student member of the IFA had exactly the same opportunity to sit the IFA’s exams as Mr Davda. It was true that an Indian student member of the IFA also had the opportunity to join the IAI, and would have the opportunity to sit the exams more frequently if the IAI kept its current policy about the dates of its exams. That simply underlined that Mr Davda’s comparator was not in materially the same circumstances as he was.

On ground 4, the finding of fact on which Mr Davda relied was not directly relevant to the claim for direct discrimination or to the appeal to this court. As Mr Reade agreed in answer to a question from Moylan LJ, Mr Davda had not appealed against the decision of the EAT to overturn the ET’s judgment on the section 112 claim and to remit that claim to the ET. The finding about the ‘agreement/policy’ was relevant to all the grounds of appeal, and those included ground 4. The EAT was entitled to decide, in the circumstances, that the finding was unsafe, and to remit that claim to the ET with no preserved findings of fact. The EAT had grappled with the parties’ written submissions about the terms of the remittal, which had included Mr Davda’s argument that the ET’s findings of fact should not be set aside on any remittal, because they had not been challenged on the appeal to the EAT. The EAT had rejected that argument, accepting that the IFA had made a perversity challenge to the relevant findings of the ET. The short point was that ground 4 related to a part of the EAT’s judgment which Mr Davda had not challenged in this court.

In his reply Mr Jupp accepted that the findings of fact were relevant to the IFA’s ground 4 in the EAT. The finding of fact about the agreement was not centrally relevant to Mr Davda’s direct discrimination claim, but the finding of fact about the policy was essential. Mr Davda was being criticised for not appealing the EAT’s decision on claim 4. But the IFA had not cross-appealed to ask for remittal to the ET on the question whether or not there was a policy. The remittal was on the question whether there was an agreement, not whether there was a policy. Mr Davda’s appeal could only succeed if that finding of fact was preserved.

Ground 2 turned on whether Mr Davda was right to argue that the court should focus on the IAI in isolation, and was not required to consider the wider picture. It was necessary to look at each MRA in turn. He agreed with Moylan LJ that each ‘arrangement’ for the purposes of section 53 was different and should be considered individually. There had been no need to amend the claim in the ET as it was clearly articulated in submissions and in the list of issues, and was plain to see in paragraph 141 of the ET’s reasons (see paragraph 29, above).

The relevant Parts of the 2010 Act are Part 2 (‘Equality: Key Concepts’) and Part 5 (‘Work’). The relevant Chapters of Part 2 are Chapter 1, ‘Protected characteristics’, Chapter 2, ‘Prohibited Conduct’ and Chapter 5, ‘Work’. Section 4 lists the protected characteristics. They include ‘race’. Section 9(1)(b) further explains that ‘race’ includes ‘nationality’.

Direct discrimination is one type of prohibited conduct. It is defined in section 13(1), which is the only part of section 13 which is relevant to this appeal. I will substitute in my summary the word ‘race’ for the phrase ‘protected characteristic’. A discriminates against B if, because of race, he treats B less favourably than he treats or would treat others. Section 19 is indirectly relevant. It defines ‘indirect discrimination’. ‘Race discrimination’ is either ‘discrimination within section 13 because of race’ or ‘discrimination within section 19 where the relevant protected characteristic is race’ (section 25(6)).

Section 23(1) is also relevant. Section 23 is headed ‘Comparison by reference to circumstances’. It provides ‘On a comparison for the purposes of section 13…there must be no material difference between the circumstances relating to each case’.

The relevant Chapter of Part 5 is Chapter 1, ‘Employment, etc’, which is divided into ten groups of sections. Sections 53 and 54 are headed ‘Qualifications’. Section 53 is headed ‘Qualifications bodies’. So far as is relevant in this appeal, section 53(1) provides that a qualifications body (A) must not discriminate against a person (B) in ‘(a) the arrangements A makes for deciding upon whom to confer a relevant qualification’. Section 54 is headed ‘Interpretation’. It applies for the purposes of section 54 (section 54(1)). Subject to irrelevant exceptions in section 54(4), a qualifications body is a body which can confer a ‘relevant qualification’ (section 54(2)). A ‘relevant qualification’ is ‘an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular trade or profession’.

James was decided under the provisions of the Sex Discrimination Act 1975 (‘the SDA’), one of the 2010 Act’s predecessor statutes. Section 1(1) of the SDA differed from section 13(1) of the 2010 Act in two respects. The phrase ‘on the ground of her sex’ was used, and the comparison directed by the provision was with ‘a man’ rather than with ‘others’. Section 2(1) made it clear that the provisions of the SDA were to be read as applying, mutatis mutandis, to men. Section 5(3) was similar, but not identical, to section 23(1) of the 2010 Act. It provided that ‘A comparison of the cases of persons of different sex…under section 1(1)…must be such that the relevant circumstances in the one case are the same, or not materially different, in the other’. Section 29 made it unlawful, in short, for a person who provided services to the public or to a section of the public to discriminate in the terms on which those services were offered.

The plaintiff and his wife (‘W’) were both 61. They went to their local swimming pool. W was let in for nothing because she was over what was then pension age for women (60). The plaintiff, on the other hand, had not reached pension age for men, (65). He had to pay 75p to get in. He brought a claim in the county court which failed on the ground that the relevant ‘section of the public’ was people who had reached pensionable age. This court overturned that decision. But it dismissed the plaintiff’s appeal on a new and different ground. It held that the council’s less favourable treatment of the plaintiff was not ‘on the grounds of his sex’ because the council applied the criterion for free entry (being of pensionable age) to both sexes equally. On that analysis the claim could only succeed as an indirect discrimination claim. That had not been pleaded, so this court declined to remit the case to the county court for it to consider an indirect discrimination claim.

The majority of the Appellate Committee held that this court had been wrong to hold that it was relevant only to ask why the defendant was treating the plaintiff less favourably, rather than simply whether there was a causal link between the plaintiff’s sex and the treatment he was given. The subjective reason for the treatment was irrelevant in this case. Section 5(3) did not help the council, because pensionable age was itself a discriminatory criterion. That meant whether or not the person had reached pensionable age could not be treated as ‘relevant circumstance’ for the purposes of section 5(3). In the words of Lord Ackner (at p 572B) ‘Such a formula was inherently discriminatory’.

I should deal, first, with Mr Jupp’s submission that that the less favourable treatment by the IFA was its arrangements for giving exemptions from its exams. I accept Mr Reade’s submission that this was not the way in which Mr Davda had pleaded, proved or argued his direct discrimination claim in the ET. That is shown most clearly by the amendment to his claim, on the last day of the ET hearing, to rely on this point, but only as a PCP in the indirect discrimination claim (see paragraph 13 above). I also accept Mr Reade’s submission that it is far too late for Mr Davda to advance this argument now. There are several reasons for this. I have already referred to the pleading. Second, this was not the way in which the ET approached the direct discrimination claim in its judgment. Third, an arrangement for exempting exams set by different international bodies is not based on, and is not a ‘proxy’ for, the race of the candidates. Fourth, even if such a claim were viable, it could not be considered without evidence about the MRAs which the IFA has with other international bodies.

I turn to the pleaded claim. The ET erred in law in holding that the opportunity to take exams four times a year rather than twice a year was treatment by the IFA. The IFA had no say or control over when, or how often, the IAI held its exams. The treatment given by the IFA to Mr Davda was, simply, allowing him two opportunities to sit its exams in each year. The IFA gave that same opportunity to all its student members, regardless of their nationality. I also agree, and this point overlaps with the point I have just made, that the ET also erred in failing to identify different treatment in arrangements which fell within section 53(1). The arrangements by the IAI for holding exams were not arrangements made by the IFA within section 53(1). That it is enough to dispose of the appeal.

For what it is worth, I also agree that the ET wrongly applied James v Eastleigh. In that case the criterion for free entry to the swimming pool was having reached retirement age. It was, as the majority of the House of Lords held (and, indeed, as the council’s counsel accepted), inherently discriminatory on the grounds of sex. It was therefore, in the modern jargon, a ‘true proxy’ for the plaintiff’s sex. If it is assumed (contrary to my view) that the treatment here is by the IFA and it is the opportunity to take the exams four times a year, that treatment is not an exact proxy for nationality. It cannot be assumed that all Indian nationals (or indeed, all Indian nationals who are student members of the IFA) are student members of the IAI, any more than it can be assumed that all student members of the IAI are Indian nationals. I also agree with the EAT’s alterative analysis of the different complaint addressed by the ET in paragraph 141of its reasons based on exemptions (see paragraph 49, above).

Although it is not necessary to decide this appeal, I further accept Mr Reade’s submissions about the correct comparator (see paragraph 65, above). The ET was clearly wrong to hold, in effect, that it was up to Mr Davda to choose his comparator. Section 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 Mr Davda, for obvious reasons. A comparison between their cases cannot clarify whether their different treatment is because of their race, or not.

That reasoning makes it unnecessary for me to decide whether ground 4 is well founded or not. Mr Jupp explained in his submissions that ground 4 only mattered to Mr Davda in so far as the ET’s finding that there was an agreement was essential to his claim of direct discrimination. The EAT considered two rounds of detailed written submissions on remittal and was entitled to decide, having set aside the ET’s judgment on the section 112 claim, that that part of the case should be remitted, without any preserved findings of fact, for the ET to consider it afresh. My view, therefore, is that ground 4 is not well founded.

The EAT was therefore right to allow the appeal in relation to claim 1 for the reasons which it gave.

For those reasons, I would dismiss this appeal.