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Objective justification defence

This page deals with the 'objective justification' defence introduced by the Equality Act 2010. Whether there is unlawful discrimination will now very often depend on whether the employer or service provider etc can show 'objective justification' of their actions.

Summary

Where does the defence apply?

Firstly where the defence does not apply: it does not apply to direct discrimination because of disability. That cannot be justified.

For disability, objective justification is most important as a defence to 'discrimination arising from disability' (s.15 EqA).

Example: Whether it was lawful to turn someone down for a job or promotion because of their communication abilities will often depend on whether the employer can show the 'objective justification' defence, in a claim for 'discrimination arising from disability'.

The objective justification defence also applies to indirect discrimination. However, in the context of disability, indirect discrimination is likely to be less important because other types of disability claim should be easier. Accordingly this page focusses on 'discrimination arising from disability'.

In practice, disability discrimination cases will often turn on objective justification and/or whether it was reasonable to make adjustments. See below Tie-across to reasonable adjustment test?

What is the defence?

To rely on the 'objective justification' defence, the employer or service provider etc must show that its unfavourable treatment of the disabled person was a 'proportionate means of achieving a legitimate aim'.

The rest of this page deals with the defence in more detail. However, some key points are:

Case law has yet to develop

The objective justification defence is new as regards disability discrimination. This page is based on case law which has developed on the defence in other areas. However, it remains to be seen just what approach the courts will take on disability. See below Case law has yet to develop.

Some examples

These examples illustrate how the objective justification defence may operate with disability. However, case law has yet to develop, so it remains to be seen just what approach the courts will take.

Example: Turned down for accountancy job

A accountancy job involves a significant amount of work on the telephone, including with the firm's clients, and also in meetings. The firm turns her down a woman with a stammer because it is concerned that she will not be able to handle the significant oral demands of the job.

The firm will have a defence to 'discrimination arising from disability' if it shows that turning her down was a propotionate means of achieving a legitimate aim. A legitimate aim might be, for example, providing a good service to clients. Presumably any evidence on the job applicant's ability (or inability) to successfully do what is required would be relevant to the tribunal's assessment of whether it was proportionate to turn her down. So would any reasonable adjustments that could be made to accommodate her stammer when doing the job.
More Example: Turned down for accountancy job.

In the matter of Horan (link to equalitytalk.org.uk) [2010] EqLR 473
In this case before the Bar Standards Board Review Panel, a barrister with aphasia following a stroke was found fit to practise as a barrister. This is not a case on the objective justification defence. However, it is helpful as an example of someone with a communication disablity found able to do a job where oral communication skills are particularly important. The Panel noted that judges had a (non-statutory) duty to make reasonable adjustments, including for a barrister with a disability.

Example: Queue in bank

A customer with a stammer has difficulty in explaining to a bank cashier what their service requirements are. The cashier asks the customer to go to the back of the queue so as not to delay other customers waiting to be served.

To rely on the objective justification defence, the bank would need to show that sending the customer to the back of the queue was a propotionate means of achieving a legitimate aim. This is likely to be very difficult. The bank might argue that serving (other?) customers promptly was a legitimate aim. However, its action is not likely to be proportionate if it could reasonably have taken alternative steps, such as bringing on another cashier. Perhaps even more important in this context, the bank's aim may well not outweigh the discriminatory effect of the customer being sent to the back of the queue.
More: Example: Queue in bank.

More detail: What does the employer or service provider etc need to show?

The employer or service provider etc has to show its conduct etc is a 'proportionate means of achieving a legitimate aim' (s.15 and s.19 EqA). For what the Codes of Practice say on this, see below Guidance in Employment and Services Codes.

Legitimate aim

There must be a legitimate aim, which should be a real, objective consideration, and not in itself discriminatory.

It seems that cost alone cannot provide sufficient justification. Cost can be a major factor, but it must be cost plus something else (known as 'cost plus'). For more, see below Issues of cost.

Proportionality

Based on European Union law, 'proportionate' implies that means should be 'appropriate and (reasonably) necessary'.

"EU law views treatment as proportionate if it is an 'appropriate and necessary' means of achieving a legitimate aim. But 'necessary' does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means."
Employment Code, para 4.31; and Services Code, para 5.32.

Homer v Chief Constable of West Yorkshire Police (pdf, supremecourt.gov.uk), 2012, Supreme Court
"A measure may be appropriate to achieving the aim but go further than is (reasonably) necessary in order to do so and thus be disproportionate." (Para 23)

See further below: Means should be appropriate and reasonably necessary.

Proportionality: Alternative measures

Given that the unfavourable treatment needs to be '(reasonably) necessary', the employer, service provider etc should consider whether proportionate alternative measures could fulfill the aim without causing such a discriminatory effect. If they could fulfill the aim, then it may well be unjustified to take the more discriminatory measures.

Example: An employer turns down a disabled person for job because of how the disability would affect their ability to do the work. In deciding whether this is justified, it will be important what reasonable adjustments could be made to overcome any difficulties. Turning the person down is unlikely to be proportionate if the aim (eg. of having a person able to do the job well) can be addressed by making adjustments.

Example: A bank cashier asks a person with a speech impediment to wait while the rest of the queue is served. This may well be disproportionate anyway. However, one alternative measure that should be considered to serve others promptly is to bring on an extra casher.
More detail on this example...

Proportionality: Balancing exercise

Even if the legitimate aim could not have been achieved by alternative measures, that is not necessarily enough to show it was 'proportionate'. There is a balancing exercise. If the discriminatory effects of the action taken outweigh the legitimate aim, ithe action is not justified. The more discriminatory a measure, the harder it will be to justify.

Example: A bank cashier asks a person with a speech impediment to wait while the rest of the queue is served. Even if another cashier cannot be brought on to deal with the queue, it may be that the discriminatory effect is so great as to be out of proportion with the aim of dealing with the rest of the queue more quickly.
More detail on this example...

For 'discrimination arising from disability', which will be the usual type of claim, it seems one looks at the discriminatory effect on the individual in weighing proportionality. For the more unusual case of indirect discrimination, there is authority that one looks at the discriminatory effect on the group, which can raise difficult questions. See Objective justification: group or individual effect?

Justification may not have been considered at the time

There is no bar to an employer etc relying on a justification that did not feature in their decision-making processes at the time, so-called "after the event" justification: Cadman v Health and Safety Executive (link to bailii.org), Court of Appeal [2004].

A couple of quotes from cases (on sex and race)

Allonby v Accrington and Rossendale College and Others [2001] ICR 1189, Court of Appeal, per Sedley LJ at 1201:
"Once a finding of a condition having a disparate and adverse impact on women had been made, what was required was at the minimum a critical evaluation of whether the college's reasons demonstrated a real need to dismiss the applicant; if there was such a need, consideration of the seriousness of the disparate impact of the dismissal on women including the applicant; and an evaluation of whether the former were sufficient to outweigh the latter."

This was an indirect sex discrimination claim. A college facing a deficit decided not to renew contracts of its part-time lecturers, most of whom were women. They would be re-engaged as subcontractors, losing pay and other benefits. The tribunal had said this was justified. The Court of Appeal held the tribunal had not taken the correct approach the question.

R (Elias) v Secretary of State for Defence (link to bailii.org), Court of Appeal, 2006, per Mummery LJ
"...the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group."

The Supreme Court gives a summary of the objective justification defence (in the context of indirect age discrimination) in the 2012 case of Homer v Chief Constable of West Yorkshire Police (pdf, supremecourt.gov.uk).

Objective assessment by tribunal

The Employment Tribunal (or County Court etc) reaches its own decision on whether the action was objectively justified. It is not limited to deciding whether the view taken by the employer, service provider etc falls within the range of what is reasonable.

This should be distinguished from unfair dismissal, where the law goes on the basis that different employers may reasonably take a different view on whether the person should have been dismissed. In an unfair dismissal claim, the tribunal considers whether the dismissal was within the 'band' (or 'range') of reasonable responses. However, this is not the approach of the Equality Act.

Hardy & Hansons plc v Lax (link to bailii.org), 2005, Court of Appeal - followed by numerous other cases:
"The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission ... that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances."

This was an indirect sex discrimination claim by a female employee who had been refused a job share. The Court of Appeal upheld the tribunal's decision that refusing the job share was not justified - the employer had overstated the difficulties of a sharing the job in question.

Homer v Chief Constable of West Yorkshire Police (pdf, supremecourt.gov.uk), 2012, Supreme Court
"As the Court of Appeal held in Hardy & Hansons plc v Lax [...], it is not enough that a reasonable employer might think the criterion justified. The tribunal itself has to weigh the real needs of the undertaking, against the discriminatory effects of the requirement." (Para 20)

Case law has yet to develop

As regards disability, the objective justification defence only took effect in October 2010 (subject to minor exceptions). This means there are no appeal decisions yet to give case law on how the defence applies specifically to disability. Accordingly this page is based on case law that has developed in other areas, such as sex and age.

Also, existing case law relates to indirect discrimination, rather than 'discrimination arising from disability' which is new in the Equality Act.

In general, it seems likely that principles from existing case law will be applied to discrimination arising from disability. However, it remains to be seen just what approach the courts will take on disability. Some possible areas of uncertainty/difference are mentioned below.

Possible difference: Greater importance of individual circumstances?

For 'discrimination arising from disability' we are likely to see greater scope to take into account the claimant's individual circumstances, to create an exception from a general practice of an employer etc.

Specifically, for indirect discrimination it has been said that one looks at the discriminatory effect on the group in weighing proportionality (this can raise difficult questions). For 'discrimination arising from disability', it seems one looks at the discriminatory effect on the individual. See Objective justification: group or individual effect?

More generally, it has been said that individual circumstances are more important for the reasonable adjustment duty than they are for the justification defence to indirect discrimination (see the Morris case, discussed in Indirect discrimination: Comparison with reasonable adjustment duty). In the case of indirect discrimination, to which existing case law (including the Morris case) relates, it is the general 'provision, criterion or practice' which has to be objectively justified. However, for 'discrimination arising from disability' it is the specific unfavourable treatment of the claimant which has to be justified. This may well give greater scope to take the individual circumstances into account.

Possible difference: Absence of EU law basis?

Existing case law is based on European Union (EU) case law relating to objective justification as a defence to indirect discrimination, largely in the field of work. However, in the field of disability discrimination:

It is possible that courts may applier a somewhat different justification test where the EU directive does not apply: for example as regards provision of services, and perhaps even in the employment field when s.15 is being applied. It may be arguable though that s.15 - at least in part - implements the directive. (Indirect discrimination under s.19 in the field of employment would fall within the EU directive.)

On the other hand, it is very possible that a uniform justification test will be applied. The fact that the Equality Act uses the same justification test wording for all areas, and that the Act is aimed at harmonising equality law, could be arguments against drawing any distinction. A similar issue on age discrimination is considered in Beginner's guide to the ban on age discrimination in goods and services (link to lawgazette.co.uk), 11/9/12 under heading 'European dimension'.

Some early decisions on disability

There are some early employment tribunal decisions on the internet:

Jamieson v Chorlton High School [2013] EqLR 429, Employment Tribunal
A teacher was dismissed for inappropriate behaviour with a former pupil. The tribunal upheld the teacher's claim that this was discrimination arising from disability within s.15 EqA. The dismissal was not objectively justified because there had been no attempt to assess the risk of repetition of the behaviour.

Parents of C v Trustees of Earl Stanbridge School (pdf, link to senlegal.co.uk), 2013, First tier tribunal
The school excluded a vulnerable disabled girl in relation to sexual conduct. The tribunal found it had failed to protect her as a victim of sexual abuse by male pupils. The tribunal held there were various breaches of Equality Act 2010, including discrimination arising from disability under s.15. The school's stated reason for excluding her was because she could not be protected. Her need for protection arose because of her disability. The school could not justify its decision as a proportionate response since it had not attempted to understand her vulnerability and to establish ways of supporting and safeguarding her short of exclusion (para 175 of the decision). The tribunal also held there was direct discrimination, and also indirect discrimination and/or a failure to make reasonable adjustments.
Also Press release (pdf, link to senlegal.co.uk), 16/1/13. The tribunal made orders even though they did not benefit the pupil: this aspect of the case is discussed under Schools: resolving disputes: Remedies: what can a tribunal order?

Islam v Abertawe Bro Morgannwg University Local Health Board (link to blog.rubensteinpublishing.com) [2013] EqLR 189, Employment Tribunal
A consultant psychiatrist was diagnosed as having mild but significant Asperger's Syndrome. He had communicaion difficulties, and was only allowed to work as a sub-consultant. The tribunal held there was unfavourable treatment arising from the disability, but it was objectively justified.

Williams v Ystrad Mynach College, ET/1600019/11
Moving a disabled employee onto a less favourable type of contract was held to be in breach of s.15.
In the employment tribunals: April 2012 (link to xperthr.co.uk)

Tie-across to reasonable adjustment test?

Provided the claimant is shown to have a 'disability', the key point in a disability discrimination claim will often be

These points may arise together. It remains to be seen how far 'reasonableness' of an adjustment and 'objective justification' will be seen as similar or different. As outlined above under Case law has yet to develop, it seems that with both the reasonable adjustment duty and the objective test as it applies to 'discrimination arising from disability', there should be scope to take into account the claimant's individual circumstances.

Example: An exam board requires a GCSE candidate to be marked partly on 'fluency' in an oral assessment. Assuming this is not unlawful anyway as direct discrimination, it is likely to be subject to both (a) the 'reasonableness' test as regards whether a reasonable adjustment should be made to the marking criterion, and (b) 'objective justification' as a defence to 'discrimination arising from disability' and/or 'indirect discrimination'. (More Exam boards).

Guidance in Employment and Services Codes

Legitimate aim

Paragraph 4.28-4.29 of the Employment Code (and paragraphs 5.28-5.29 of the Services Code, and paragraphs 5.27-5.28 FHE Technical guidance) says that a 'legitimate aim'

What is proportionate?

It is not enough that there is a legitimate aim. The treatment must also be a proportionate means of achieving it. Paragraph 4.30-4.32 of the Employment Code (and paragraph 5.31-5.33 of the Services Code, and from paragraph 5.30 FHE Technical guidance) says this:

It is up to the employer, service provider etc to produce evidence to support their assertion that the treatment is justified. Generalisations will not be sufficient to provide justification. (Employment Code para 4.26, Services Code para 6.13)

Issues of cost

Cases, such as O'Brien below, indicate that cost alone cannot be a justification.The Employment and Services Codes say (as described above) that an employer or service provider solely aiming to reduce costs cannot expect to satisfy the test of having a 'legitimate aim', and that the greater financial cost of using a less discriminatory approach cannot, by itself, provide a justification.

Employers do argue that that 'cost plus' can be objective justification. The argument is that cost can be used as justification if it is 'plus' some further factor. Then cost can be 'put into the balance'. The law is still developing on how far 'cost plus' can be a justification.

O'Brien v Ministry of Justice (link to bailii.org), Supreme Court, 2013
This was not a case on the Equality Act, but on part-time worker regulations where a similar objective justification test applies. The Supreme Court held it was not justified for the state to pay a pension to circuit judges (who are full time) but not to recorders (part-time judges). The argument that if recorders get a pension, then the pensions payable to circuit judges will have to be reduced was a pure budgetary consideration. The fundamental principles of equal treatment cannot depend on how much money happens to be available in the public coffers, or on how the State chooses to allocate funds. "That argument would not avail a private employer and it should not avail the State in its capacity as an employer." The Supreme Court described 'cost plus' as "a subtle point which is not without difficulty", but found it unnecessary to express a view upon whether Woodcock (above) was rightly decided.

Woodcock v Cumbria PCT (link to bailii.org), Court of Appeal, 2012
The timing of the employee's dismissal for redundancy was wholly for cost reasons, to avoid the cost of funding an early retirement pension which would apply if his dismissal took effect after he reached age 50. Saving or avoiding costs was not on its own sufficient justification. However, the post was genuinely redundant and in the unusual circumstances of the case the court held that the employer's actions were objectively justified. It was a legitimate part of the aim for the employer to ensure that, in giving effect to the dismissal of a redundant employee, it should not incur those additional costs.
In the light of the O'Brien case above, the Court of Appeal should probably have held that there was no objective justification in this case.

The reasonable adjustment rules and objective justification test may now both apply to the same situation - a 'provision, criterion or practice' adversely affecting a disabled person may be subject to both sets of rules. It will therefore be interesting to see how far the tribunals decide to see the tests as different (see also Tie-across to reasonable adjustment test). As to cost under the reasonable adjustment rules, see Reasonable adjustment rules: Cost of reasonable adjustments.

Employment

Paragraph 4.28 of the Employment Code states that the health, welfare and safety of individuals may qualify as legitimate aims provided that risks are clearly specified and supported by evidence.

For an example of how the objective justification defence may work with employment, see above Some examples.

See below for Comparison with previous DDA justification test.

Provision of services

Paragraph 5.30 of the Services Code gives some examples of legitimate aims:

A significant factor in determining whether a public authority is able to show objective justification is the extent to which the authority has complied with its public sector equality duty (Services Code, para 5.36).

For an example of how the objective justification defence may work with provision of services, see above Some examples.

See below for Comparison with previous DDA justification test.

Further and higher education

FHE Technical guidance para 5.29 gives some examples of legitimate aims:

A significant factor in determining whether a public authority (including all non-private FE and HE institutions) is able to satisfy the justifaction test is the extent to which the authority has complied with their Public Sector Equality Duty. (FHE Technical guidance para 5.35)

Means should be appropriate and reasonably necessary

Case law

The EU Framework Directive talks not of aims being 'proportionate' but of being 'appropriate and necessary'. There is authority that 'proportionate' in UK law must be read in the light of this:

Homer v Chief Constable of West Yorkshire Police (pdf, supremecourt.gov.uk), 2012, Supreme Court
'The ET [Employment Tribunal] ...regarded the terms "appropriate", "necessary" and "proportionate" as "equally interchangeable".... It is clear from the European and domestic jurisprudence cited above that this is not correct. Although the regulation refers only to a "proportionate means of achieving a legitimate aim", this has to be read in the light of the Directive which it implements. To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.' (Para 22).

Any different for 'discrimination arising from disability'?

Unlike indirect discrimination, 'discrimination arising from disability' on which this page focuses is not based on a European Directive. However, although we do not have case law on this so far, it must be likely that 'proportionate' for the objective justification defence generally will be interpreted in the same way as for indirect discrimination.

Parliamentary discussion

In the formulating the final wording of the Equality Act, it was argued more than once that the words 'appropriate and necessary', which appear in European directives, should be used rather than the word 'proportionate'. The (Labour) Government rejected this, When the issue came up in the House of Commons Committee on the Equality Bill (col 282-283, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)), the Solicitor General explained the Government's reasons for insisting on the word 'proportionate' as follows:

"...Means that are 'proportionate' must be 'appropriate and necessary'... Both concepts are included in the test that we have used, but they need not be necessary in the sense of being the only possible means of achieving a legitimate aim. It is sufficient that the means are not more discriminatory than any other means that could have been chosen to achieve the same end...

There is a risk that changing language well established in British law could lead to an excessive narrowing of the scope of justification beyond what the directive requires, because that change could be - and 'necessary' has been - interpreted very strictly by our courts. However, they are obliged to interpret the legislation compatibly with the directive and they know how to do that. In a nutshell, this is well-tried and well-used language that everybody understands."

Codes of Practice

The language of the Employment Code and Services Code outlined above clearly reflects this statement in Parliament.

"EU law views treatment as proportionate if it is an 'appropriate and necessary' means of achieving a legitimate aim. But 'necessary' does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means."
Employment Code, para 4.31; and Services Code, para 5.32.

Comparison with previous DDA justification tests

The objective justification defence applies generally across the Equality Act. However, before the Equality Act took effect in October 2010, the Disability Discrimination Act 1995 (DDA) had different justication tests for employment on the one hand and provision of services on the other:

Employment

The objective justification test should provide a higher threshold than the DDA test used for employment before October 2010. In other words, there are cases in which employers would have been able to justify their actions under the DDA, but now cannot under the Equality Act.

Before October 2010, the 'justification' test was whether the employer's reason for less favourable treatment was material to the circumstances and substantial. This was quite a low threshold for employers to meet, partly because tribunals refused to substitute their own decision as to whether the reason relied on by the employer is material and substantial. Tribunals restricted themselves to deciding whether the reason was within the range of what a reasonable employer would have relied on as material and substantial. (More on pre-October 2010 'justification' test..)

Provision of services

Before October 2010, less favourable treatment was justified under the DDA only if the provider showed that:

What effect will the new 'objective justification' test have, compared with the DDA one? The Government has said that under the new test service providers will potentially have a wider range of circumstances in which they could justify discrimination - because a 'legitimate aim' no longer needs to be one of certain specified conditions. However, the need to show 'proportionality' is, says the Government, a considerably stricter test than the subjective ('reasonable opinion') part of the DDA justification test. So the new test of objective justification, while widening the circumstances in which discrimination can be justified, also applies a stricter test of whether the discrimination is in fact justified. (Source: June 2007 Green paper.) (More on pre-October 2010 justification test for service providers and public authority functions.)

In the context of stammering, the list of conditions within which an aim had to fall before October 2010 meant that a service provider only had very limited scope to use the justification defence. The main ones were health and safety, or being able to provide the service at all. In the pre-2010 Services Code of Practice there was an example about customers with a speech impairment having difficulty explaining to a bank cashier what their service requirements were. The example said that if the cashier asked the disabled customers to go to the back of the queue so as not to delay other customers waiting to be served, this was unlikely to be justified. Given the limited types of aim permissible before 2010, this was pretty clear.

Under the new test it may be less certain whether a person who stammers has a claim. What would the position be now under this bank cashier example, or if someone puts the phone down on you? The service provider might argue that they would have done the same with anyone who was taking that length of time. So (arguably at least) it may not be direct discrimination. The argument would then move to whether or not what they did was a proportionate response to achieving a legitimate aim, or whether they should have made a reasonable adjustment. Arguments are likely to centre around proportionality and reasonableness. For how I would see the objective justification test applying to the bank cashier example, see Example: Queue at bank.

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