Establishing a legal defence | When is employment discrimination justified?

The Equality Act 2010 outlaws several different forms of discrimination.

While some of these can never be justified, others – namely indirect discrimination, discrimination arising from disability (section 15 discrimination) and direct age discrimination – can be justified in certain circumstances.

Indirect discrimination occurs when a company’s policies, procedures or rules which apply to everyone have the effect that people with a certain protected characteristic are put at a disadvantage when compared with those who do not share it.

Section 15 discrimination occurs when a person is treated unfavourably because of something arising as a consequence of their disability. No comparison with how others are treated is required in these cases.

Direct age discrimination occurs when an employer treats a person less favourably because of their age than they would treat others. It is the only form of direct discrimination that can be justified.

In each of the above cases, the employer will have discriminated against the employee, unless they are able to justify the treatment. In all three cases, it is down to employers to persuade a Tribunal that:

1. The provision, criterion or practice (PCP) or treatment was in pursuance of, and capable of meeting, a legitimate aim.

Whether an employer’s states aim is indeed legitimate will be for a Tribunal to decide.

• In relation to disability-related sickness absence, case law suggests that ensuring adequate attendance levels and seeking to improve attendance are legitimate aims. However, issuing a warning after 60 days of sickness absence was found not to be a proportionate means of meeting it.
• With regards to direct age discrimination, the Equal Treatment Directive 2000 states that an aim will only be legitimate if it relates to “employment policy, the labour market or vocational training” and not “purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness.”

2. When balanced against the discriminatory effect, the PCP or treatment was a proportionate means of meeting that aim.

This part of the justification defence can be very difficult to predict, particularly when dealing with disability-related sickness absence.

When considering proportionality, a Tribunal will look at how many people in a protected group are adversely affected by the PCP or treatment and how severe that is. Where the discriminatory effect is particularly severe, the PCP or treatment is less likely to be proportionate.

A Tribunal will also consider:

• Whether there were less discriminatory ways of achieving the legitimate aim.
• Whether any reasonable adjustments could have been implemented before taking action that could be discriminatory.

If so, it will be difficult for the employer to argue that the steps taken were proportionate.

Speak to the experts

If you would like practical advice on discrimination or any other employee relations matter from a qualified employment law specialist, contact the NPA Employment Advisory Service on 0330 123 0558 or email employmentadvice@npa.co.uk.

For further guidance on this topic, including relevant case law examples and some simple risk-reducing tips, watch Ellis Whittam’s free webinar: Justifying Discrimination.