Objective justification: discrimination defence?

When can an employer defend an act of either direct or indirect discrimination by reason of objective justification?

As an employer, you are under a statutory duty not to discriminate against any member of staff, or even against a prospective job applicant. That said, there are some circumstances in which you may have a good enough reason for treating someone less favourably, or causing a particular group of people a disadvantage. This is a defence against discrimination claims known as objective justification.

What is objective justification under the Equality Act?

Under the Equality Act 2010, it is unlawful to treat someone less favourably than you would treat others by reason of a protected characteristic, in other words, to directly discriminate against them. These provisions apply not only to employees but to a wide range of individuals, including agency workers and contractors, all of whom are protected from suffering discrimination.

It is also unlawful to indirectly discriminate against a person, or group of people, namely, by applying a provision, criterion or practice that is discriminatory in relation to a relevant protected characteristic.

A protected characteristic can include someone’s age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, as well as sex and sexual orientation.

However, the 2010 Act goes on to provide, albeit in exceptional circumstances, that if an employer has a good enough reason for the unfavourable treatment complained of, or any disadvantage caused, this does not necessarily constitute unlawful discrimination under the Act.

In particular, where permissible, you will not be guilty of discrimination in the workplace if you can show that your treatment or action is “a proportionate means of achieving a legitimate aim”. When applying this statutory test, this has become known through the courts as objective justification.

When can an employer rely on objective justification?

Under the 2010 Act, there are only certain circumstances in which an employer can raise an objective justification defence to excuse discriminatory treatment. These are limited to the following three contexts:

• Direct age discrimination
• Discrimination arising from a disability
• Indirect discrimination

Further, the defence does not apply to other forms of prohibited conduct, such as harassment or victimisation.

Direct age discrimination

Direct discrimination refers to when an individual is treated less favourably than others either because they possess a protected characteristic, or where it is believed that they possess that characteristic (discrimination by perception), or is even associated with someone who possesses that characteristic (discrimination by association).

However, when applying a defence of objective justification, direct discrimination can only ever be justified in the context of the complainant’s age, and not in relation to any of the other protected characteristics.

An example of direct age discrimination is where an employer refuses to shortlist a prospective job candidate because they are considered ‘too old’ for the job. It could also include denying an existing employee a training opportunity, or even promotion, because of their age.

Discrimination arising from a disability

In relation to discrimination arising from a disability, this refers to when someone is treated unfavourably because of something arising in consequence of disability, rather than the disability itself. As such, this is somewhat different to direct disability discrimination.

Examples of things that might be connected to a disability are the need for regular rest or toilet breaks, or the need for specialist equipment or a flexible working pattern. As such, any action that discriminates against an individual in relation to this type of matter is potentially unlawful.

Indirect discrimination

Indirect discrimination refers to the application of a policy or rule that subjects a group of individuals who share a protected characteristic to a disadvantage when compared to those who do not possess the same characteristic. Further, when it comes to assessing whether or not any such policy or rule is indirectly discriminatory, it matters not that any disadvantage caused was unintended.

When applying a defence of objective justification, indirect discrimination can only be justified where the disadvantage relates to one of the following protected characteristics, namely, age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, as well as sex and sexual orientation – thereby excluding pregnancy and maternity.

That said, although maternity and pregnancy are excluded from these provisions, it is important to bear in mind that there is nothing to prevent a woman from bringing a claim for indirect discrimination based on her sex.

An example of indirect discrimination by reason of sex could include a policy requiring all employees to undertake full-time hours, where a lot more women have caring responsibilities for young children or dependant adults so they would find it much more difficult than their male counterparts to work full-time.

What is a proportionate means of achieving a legitimate aim?

The question of what constitutes ‘a proportionate means of achieving a legitimate aim’ has been scrutinised in a number of cases before the courts. In particular, there is case law confirming there a number of steps within the reasoning process that must each be considered separately.

In the decision of Akerman-Livingstone v Aster Communities Ltd [2015] the Supreme Court considered these steps in more detail. Even though the facts of the case related to possession by a social landlord against a disabled tenant, the same or similar principles can be applied to justifying discrimination within the workplace, either in the context of disability discrimination or otherwise.

In particular, in considering the application of objective justification, the court set out the following four-stage structured approach:

• First, whether the aim in taking the steps complained of was sufficiently important to justify the less favourable treatment or disadvantage suffered. A legitimate aim is essentially the reason behind the discrimination, where this reason must be a genuine or real reason that is not in itself discriminatory.
• Second, whether there is any rational connection between this aim and the less favourable treatment or disadvantage suffered.
• Third, whether the means chosen are no more than is necessary to accomplish the objective. It is not enough that there is a legitimate aim, where the treatment must also be a proportionate means of achieving it.
• Fourth, whether the steps complained of strike a fair balance between the need to accomplish the aim and the detriment suffered.

It is important to remember, that it is only possible to consider the issue of proportionality once the legitimate aim has been clearly identified, as it is against that specific aim that proportionality falls to be considered.

In the context of discrimination in the workplace, the approach to proportionality requires a balance to be struck between the importance of the employers’ aims and the seriousness of the impact upon the employee, where the detriment caused must not be disproportionate to the aims pursued. In other words, the legitimate aim must outweigh the discriminatory effects.

It also requires an analysis of whether there is any lesser discriminatory measure that might achieve the employer’s aims. As such, in circumstances where proportionate alternative steps could have been taken, the unfavourable treatment or disadvantage caused is unlikely to be justified.

In practice, the employment tribunal will often adopt a broad brush approach, undertaking a balancing exercise between the detriment caused to the employee as against the employers’ reasons for this, and any possible alternative courses of action that could have been adopted to avoid or reduce that detriment.

What are the breadth and limitations of objective justification?

The breadth and limitations of objective justification will typically turn on the facts, where each case must be considered on its own individual merits.

However, common examples of what can constitute a legitimate aim include:

• The health, safety and welfare of the individual or others, including protection of young people or older workers
• The wellbeing or dignity of the individual or others
• The particular training requirements of the job
• The need to run and provide an efficient service
• The economic and operational requirements of the business

In all cases, a legitimate aim must correspond with a real need of the employer. For example, economic efficiency may constitute a real need, but saving money because it is cheaper to discriminate than not to discriminate is not legitimate.

In particular, the greater financial cost of using a less discriminatory approach cannot, by itself, provide an objective justification. There may even be situations in which the ends, however meritorious, cannot justify the only means that is capable of achieving them.

This doesn’t mean to say that costs can never be factored into the justification process, especially where an employer can show there are other good enough reasons for the treatment. However, an employer solely aiming to reduce costs should not expect to satisfy the test of having a legitimate aim. In other words, cost alone is not sufficient to justify discriminatory treatment.

It is also important to remember that the range of aims that can justify indirect discrimination on any ground is wider than the aims that can, in the case of age discrimination, justify direct discrimination. Typically, as a general principle, direct discrimination can be harder to justify than indirect discrimination.

The test to be applied is also an objective, not a subjective one, whereby the test requires an objective balance to be struck between the discriminatory effect of the measure and the reasonable needs of the employer.

What if an objective justification is not established?

As a matter of law, the legal burden rests with the employer to show that the unfavourable treatment or any disadvantage caused was objectively justified.

As such, where the employer has been unable to adduce sufficient evidence and explanation to persuade a tribunal that the “means justified the end”, a finding will be made of unlawful discrimination.

Where a case of unlawful discrimination succeeds, an employment tribunal can order compensation, make a recommendation and/or make a declaration as to the rights of the parties. An award of compensation will reflect not only any loss of earnings, but can also represent what’s known as ‘injury to feelings’.

In the context of discrimination, there is no statutory limit on the amount of compensation that can be awarded. In other words, compensation following a successful claim for unlawful discrimination is unlimited.

Further, compensation may be awarded in addition to the two other remedies available, namely a declaration or recommendation(s). A declaration is simply a statement to the effect that the discrimination took place. For the employee, this can be important as a matter of principle. A tribunal may also make one or more recommendations to the employer designed to remove or reduce the adverse effects on the complainant, for example, considering the employee for the next promoted post or arranging equality training for the employee’s line manager.

What steps can be taken to support an objective justification?

Many cases of unlawful discrimination within the workplace arise in circumstances where an employer has introduced a new policy or rule that has inadvertently had a discriminatory effect on a particular individual, or group of individuals, possessing a relevant protected characteristic.

That said, even where the discrimination is not deliberate, a finding of unlawful discrimination may still result.

As such, when imposing a new policy that requires an objective justification, the employer should always undertake some form of quantitative and qualitative assessment as to the extent of any potential discriminatory effect.

This should include asking the following questions:

• What is the legitimate aim being sought?
• What alternative options have been considered?
• Why is the chosen policy or rule reasonably necessary to achieve the legitimate aim?
• How many employees/workers are going to be impacted?
• To what extent will those individuals be subject to a disadvantage?
• Is there a less discriminatory way to achieve the same objective?

The employer should also endeavour to make a clear note, and keep a careful record, of each of the requirements set out above, together with all documented evidence in support of their reasons for any steps taken.

In the event of any uncertainty, expert legal advice should be sought from an employment law specialist prior to implementing a new policy or rule. In this way, employers can help to protect themselves from any claim for unlawful discrimination and, more importantly, make an informed decision before acting in a potentially discriminatory way.

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.