Home » Disability equality law » Types of discrimination » Discrimination arising from disability (s.15 Equality Act) » Objective justification defence

Objective justification defence

Disclaimer – please read
This page does not apply outside Great Britain.
Last updated 1st July 2022 (part update 6th February, 2024).

Whether there is unlawful discrimination will very often depend on whether the employer or service provider etc can show its action was a “proportionate means of achieving a legitimate aim”.

Note: It is unclear whether Brexit will affect how the courts apply this defence: below Brexit uncertainty.

Summary

  • The objective justification defence applies to claims for ‘discrimination arising from disability’ under s.15 EqA. Claims under s.15 are the focus of this page. The defence also applies to indirect discrimination under s.19 (subject to some differences), but s.19 is less important in the context of disability discrimination.
  • S.15 is very wide. There may be a claim under s.15 if the employer (or service provider etc) treats a disabled person unfavourably “because of something arising in consequence of” the disability. However the employer has a defence if it did not know (and could not reasonably have been expected to know) of the disability. The employer also has a defence – the objective justification defence – if it can show its action was a “proportionate means of achieving a legitimate aim”.
  • The employment tribunal (or County Court etc) conducts a balancing exercise (below) to decide whether the action was a proportionate means of achieving a legitimate aim. Was the aim sufficiently important? Could the employer’s aim have been achieved by alternative, less discriminatory means, including possible reasonable adjustments (below)? Does the legitimate aim outweigh the discriminatory effects on the claimant?
  • A 2022 EAT decision, DWP v Boyers, indicates that it is the outcome rather than the employer’s process or procedure that needs to be justified, but the process/procedure can still be relevant. Below Outcome vs procedure.
  • There are some examples below of how the test might apply to communication disabilities.
  • The tribunal will reach its own objective assessment of whether the defence applies. Accordingly it is normally harder for employers etc to show justification than is the case for unfair dismissal.
  • The saving or avoidance of costs does not without more amount to a “legitimate aim”.
  • The objective justification defence does not apply to the reasonable adjustment duty. The equivalent test there is whether the adjustments sought are “reasonable”.

Brexit uncertainty

This page is based on past cases, which follow EU case law. After Brexit and the Retained EU Law Act 2023, there is a possibility that the meaning of “proportionate” has changed, mainly from 1st January 2024: see Effect of EU law when interpreting Equality Act, from 2024>Proportionality.

What is “proportionate” is by far the most important element of the justification defence. I think it is unlikely the existing approach will change much, if at all – after any delays for referrals to higher courts to consider the issue (when s.6 REUL Act comes into force). The current interpretation of “proportionate” seems to me largely a common sense one.

Where does the defence apply?

Firstly, where the justification defence does not apply: it does not apply to direct discrimination because of disability. That cannot be justified (unless there is an occupational requirement to have a disability).

For disability, justification is most important as a possible 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 its decision was objectively justified. If it can show that, it has a defence to a claim for ‘discrimination arising from disability’. The employer has to show that turning the person down was a proportionate means of achieving a legitimate aim.

The objective justification defence also applies to indirect discrimination. However, for disability this is normally less important as other types of disability claim should be easier to make. Accordingly this page focuses on ‘discrimination arising from disability’.

In practice, disability discrimination cases often turn on objective justification and/or whether it was reasonable to make adjustments.

Balancing exercise

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 burden is on the employer to show the unfavourable treatment meets that test. The employment tribunal or other court conducts a balancing exercise to assess whether the action by the employer etc was a proportionate means of achieving the aim.

(The Supreme Court in Akerman set out a “four-stage structured approach” (below) to the test. In practice employment tribunals hardly ever mention Akerman and do not go through each stage. They tend to focus on what was the aim (this is often uncontroversial), and then on the main question of whether a fair balance has been struck. However a tribunal decision could be challenged if it is not consistent with the principles in Akerman. A very rare instance of the EAT actually citing the test in Akerman was its 2022 decision in DWP v Boyers.)

Whether there was objective justification is a matter for the employment tribunal or County Court to decide. The tribunal etc is not limited to considering whether a reasonable employer or service provider etc might have considered it justified (below Objective assessment by tribunal).

In deciding whether the employer etc has shown justification, tribunals/courts should take into account particularly

  • Was the aim sufficiently important? Cases have asked “Is the objective sufficiently important to justify limiting a fundamental right?” or have said there should be a “real need” (Four-stage structured approach (below)).
  • Could this aim of the employer etc have been achieved by alternative, less discriminatory means, including but not limited to possible reasonable adjustments? If proportionate alternative steps could have been taken, the unfavourable treatment is unlikely to be justified. Examples of alternative less discriminatory means might be making adjustments to enable a job applicant to do a job rather than rejecting them, or redeploying someone (or making other adjustments) rather than dismissing them. See also below Relevance of reasonable adjustments.
  • Does the aim outweigh the discriminatory effects on the claimant? The disadvantage to the claimant must not be disproportionate to the aims pursued (see eg Akerman under Four-stage structured approach (below), and para 24 of the Supreme Court decision in Homer v Chief Constable of West Yorkshire Police (bailii.org), 2012. There are some situations where the ends, however meritorious, cannot justify the only means which are capable of achieving them. Therefore it is not necessarily enough for employer etc to show that the unfavourable treatment was the only way to achieve its aim.

Burdett v Aviva (bailii.org) Employment Appeal Tribunal (EAT), 2014
The claimant had committed sexual assaults in the workplace as a result of his paranoid schizophrenic illness. He was dismissed because of the assaults. An employment tribunal found the dismissal was justified.

The EAT said it was for the employment tribunal to conduct the balancing exercise, which required careful scrutiny of the evidence and the case before the tribunal. However the tribunal in this case had not conducted the exercise properly, and the case should be reconsidered.

The employer’s aim of adhering to appropriate standards of conduct in the workplace was legitimate, to ensure the safety of its employees.

To the extent that the claimant had breached these standards and might do so again, dismissal was one way of achieving the employer’s aim. However it was a means that was devastating for the claimant, particularly given the nature of his disability. The tribunal’s task was to scrutinise the means chosen by the employer as against other alternatives that (on the evidence) might have been available to achieve the aim. In so doing, the tribunal was required to weigh in the balance the discriminatory impact of the measure chosen against such other alternatives open to the employer.

Even if the tribunal here had considered the significance of the discriminatory impact on the claimant, it had not carried out any critical evaluation of the possible alternative means of achieving the aim – in particular having the claimant perform his job from home. The tribunal had also failed properly to consider evidence of how far there was a risk he would commit further assualts if he stayed on medication.

The employer argued that it wanted to show it was taking a serious approach to the claimant’s conduct and its impact on other members of staff. However that would be a different aim (different from keeping staff safe), and the tribunal would need to carry out some form of assessment as to whether a perceived need for retribution was sufficiently important to justify limiting a fundamental right, ie the protection to which the claimant was entitled due to his disability.

Note: The EAT did not hold that the dismissal here was unjustified, only that a tribunal should reconsider the issue. Also it is not clear why the claimant’s condition was not excluded from being a disability as a “tendency to physically or sexually abuse others”, under paragraph 4 of the Equality Act 2010 (Disability) Regulations 2010 (subject to possible human rights arguments).

Of course the employer’s interests must also be properly weighed in the balancing exercise:

Hensman v Ministry of Defence (bailii.org), EAT, 2014
The claimant was employed in a civilian capacity by the Ministry of Defence and lived in shared accommodation provided by the Ministry.  He was found to be in possession of video and still images of another employee which had been taken by covert filming while he was in the shower. The claimant pleaded guilty to an offence of outraging public decency and was sentenced to a three year Community Order. In sentencing him the criminal court accepted his mitigation that he suffered from Asperger’s syndrome and a number of other mental disorders. As a result of disciplinary proceedings the claimant was then dismissed by the Ministry for gross misconduct. The employment tribunal found the dismissal was a breach of s.15 EqA.

The EAT upheld the employer’s appeal. In assessing proportionality under s.15, the tribunal had failed to have regard to relevant considerations and had focused entirely on what the Crown Court had said when sentencing the claimant in the criminal proceedings. The tribunal had not assessed particular issues weighing on the employer’s mind. The EAT sent the case to be reconsidered by a different tribunal, as to whether the dismissal was proportionate.

Outcome vs procedure

The 2022 decision in Boyers indicates that it is the outcome rather than the process/procedure that needs to be justified, but this does not mean the process or procedure is irrelevant. As summarised below, the unfavourable treatment (or “outcome”) in that case was dismissal, but the process leading up to it was relevant.

I suggest that without taking appropriate steps, the employer puts itself at risk of not being able to show to the employment tribunal that it acted lawfully, since the onus is on the employer to show justification. Without appropriate steps, the employer also puts itself at risk of acting unlawfully though ignorance. See below My comment on the Boyers decision.

Department of Work and Pensions v Boyers, EAT, 2022
The claimant had a mental health disability and was dismissed after a long absence. There had been a trial of her working at an alternative location but this was not carried out reasonably. The EAT said that without properly evaluating this work trial, to decide whether it was genuinely successful, the employer could not show that the dismissal was reasonably necessary to achieve its aims (such as protecting scarce public funds), when balanced against the impact the dismissal had on the claimant. Her s.15 claim succeeded.

The EAT held that it is the outcome – here the dismissal – that must be justified rather than the process or procedure leading up to it. However this does not mean the process/procedure is irrelevant. For example in this case the work trial was relevant.

Also in Knightley (2021) below, at para 39, the EAT commented that the law of unfair dismissal arguably places a greater emphasis on procedural fairness than the EqA concept of proportionality under s.15, which is more focused on outcomes. (For the position on unfair dismissal, see Losing one’s job>Unfair dismissal: Relevance of procedure.)

My comment on the Boyers decision

Unlike the first EAT decision in Boyers, the second one recognises explicitly that failures in process/procedure can be relevant to the justification defence. I suggest in particular that the decision-making process is still important because the burden is on the employer to show that its action (the dismissal in this case) was justified.

Take the work trial in Boyers. Promised weekly feedback sessions on her performance during the trial were not provided. Also the training she received was limited. Since it is not known what the outcome of the trial would have been with the proper measures in place, it is unsurprising if the employer has difficulty showing it was reasonably necessary to dismiss her. Also how does the employer show the dismissal was reasonably necessary without proving to the tribunal that the trial was genuinely unsuccessful, which must include showing a good reason?

I think there is a parallel with the case law on reasonable adjustments: see Reasonable adjustment rules: employment>Assessment, consultation and trials. As discussed there, the EAT held in Tarbuck v Sainsburys and Rowan v Environment Agency that steps such as consulting with the worker, getting medical and other specialist reports, and trialling a reasonable adjustment are not in themselves reasonable adjustments which the employer is bound to make, but if the employer fails to take such steps then it places itself seriously at risk of not making appropriate adjustments because of its own ignorance, and might find it difficult to establish that a particular step was not a reasonable adjustment. (Note that the burden is normally on the employer to show an adjustment was not reasonable: Reasonable adjustment rules: employment>Burden of proof.)

I suggest that similarly an employer which fails to take appropriate steps in deciding to do something that is unfavourable treatment arising from a disability (within the scope of s.15 EqA):

  • puts itself at greater risk of making a decision which is not justified under s.15, through ignorance, and
  • is likely to find it more difficult to prove justification to an employment tribunal. Eg in Boyers who knows what the outcome of a properly conducted trial of the alternative work would have been?

The unfavourable treatment might be dismissal, rejection of a job application or something else.

Those reasonable adjustment cases can also be relevant in their own right. Firstly, as well as any s.15 EqA claim, it may also be possible to claim under s.20 EqA for failure to make reasonable adjustments. Secondly, if the employer failed to make reasonable adjustments which would have prevented a dismissal, then it will normally be difficult for the employer to show justification in a claim under s.15 EqA: below Relevance of reasonable adjustments.

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].

However as discussed in Boyers, 2022, for example, the employer’s failure to consider the aims at the time may make it more difficult to show justification.

Relevance of reasonable adjustments

The Employment Code of Practice says:

5.21 If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified.

The courts do not need to follow the Code of Practice, but cases broadly support this statement. S.15 EqA (with its justification test based on proportionality) and s.20 (reasonable adjustments) are separate claims, not interdependent, and the legal principles applicable to each claim must be applied to the facts of the case. However in deciding proportionality under s.15, an important question is whether a less intrusive measure could have been used. It follows that if a reasonable adjustment would have made the dismissal unnecessary, the dismissal is also likely to be disproportionate under s.15. Two cases on this:

  • In Knightly below, 2021, EAT held that a dismissal could still be proportionate under s.15 if the employer failed to make a reasonable adjustment which would have made no difference to the dismissal. However if a reasonable adjustment would have meant that the dismissal became unnecessary, the dismissal was likely to be disproportionate.
  • In Boyers below, 2022, the EAT held that because s.15 was a separate claim from the reasonable adjustment duty, the employment tribunal was entitled to find that a dismissal was unjustified (disproportionate) because a work trial had not been properly conducted, even if there was no failure to make reasonable adjustments.

What if it is not clear whether the reasonable adjustment would have avoided the dismissal etc? It could be argued that since it is for the employer to show justification, it is for the employer to show it is more likely than not that the adjustment would not have avoided the unfavourable treatment.

Knightley v Chelsea & Westminster Hospital NHS Foundation Trust (nationalarchives.gov.uk), Employment Appeal Tribunal (EAT), 2021
The claimant was on long-term sickness absence due to mental health disability. She said herself that she was unable to return to work, and was looking to apply for ill-health retirement. The employer dismissed her. She wanted to appeal internally against the dismissal, but missed the deadline.

The employment tribunal held the employer should have made a reasonable adjustment of extending the deadline for the internal appeal, and awarded her compensation accordingly. This part of the tribunal decision was not appealed to the EAT. The tribunal also found that the dismissal would have gone ahead even if she had appealed.

The tribunal rejected her claim for unfair dismissal and her claim under s.15 EqA (discrimination arising from disability). The s.15 claim failed because the dismisal was a proportionate means of achieving a legitimate aim (ie it was justified).

In her appeal to the EAT, the claimant argued that because there was a failure to make a reasonable adjustment, the dismissal must be disproportionate under s.15 EqA. The EAT disagreed. It said s.15 and (on reasonable adjustments) s.20 EqA are separate claims. The legal principles of each type of claim have to be applied to the facts of the case. If a reasonable adjustment (under s.20) would have meant that the dismissal of the employee became unnecessary, the dismissal is also likely to be disproportionate under s.15. However this is not because of any breach of s.20 as such, but because in deciding whether unfavourable trestment is “proportionate”, one question the court should consider is whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective. The EAT explained that this was what paragraph 5.21 of the Code of Practice (quoted above) is saying: failure to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment is likely to lead to a successful claim under s.15 as well because the employer’s actions are likely to be disproportionate as well.

In the language of paragraph 5.21 of the Code of Practice, this was not a case where an internal appeal would have prevented the dismissal of the claimant or indeed minimised the risk that she would be dismissed. The tribunal was entitled to decide her dismissal was proportionate.

The EAT reached a similar conclusion on the unfair dismissal claim. The reasonableness of the procedure is more directly relevant for unfair dismissal (Losing one’s job>Unfair dismissal: Relevance of procedure). Even so, the tribunal had been entitled to decide that her dismissal was both procedurally and substantively within the range of reasonable responses.

The EAT’s approach in Knightley above – that the tests for s.15 and s.20 (reasonable adjustments) are separate – is consistent with the later EAT decision in:

Department of Work and Pensions v Boyers, EAT, 2022
The employer had dismissed the claimant who was on long-term sick leave due to mental health disability. There had been a trial for her to work at an alternative location. The employer considered the work trial unsuccessful, but it had not been conducted reasonably. There was no claim for failure to make a reasonable adjustment. However the employment tribunal held the dismissal was not proportionate under s.15 EqA because of the failings in the work trial.

The EAT held the tribunal was entitled to reach that conclusion. The employer argued to the EAT that where no reasonable adjustment can be made, a complaint brought by reference to s.15 EqA is bound to fail. The EAT rejected this argument, saying the Court of Appeal in Griffiths v Secretary of State for Work and Pensions had made clear that the conduct prohibited by s.15 EqA is separate to, and distinct from, the conduct prohibited by section 21 EqA (reasonable adjustments).

The EAT in Boyers (para 46 of the 2022 decision) also rejected the employer’s argument that the tribunal effectively – and wrongly – imposed on the employer a duty to redeploy, akin to the duty to make a reasonable adjustment. The EAT said the tribunal did not impose any such duty. In this case the employer offered a work trial but did not properly evaluate its success before dismissing her. It was “pure speculation to suppose that, if there had been no work trial at all in another location, the [tribunal] would have found the dismissal disproportionate on the basis that one should have been offered. That was not the case it heard, and not the judgment it made.” However given what the courts say about s.15 and the reasonable duty being separate, I find it difficult to see why the result should have been different if the employer had failed to offer a trial (or otherwise to reploy the claimant) at all. The burden is on the employer to show that a less intrusive measure (than dismissal) could not have been used, such as redeployment to another location in this case.

A particular unresolved issue is whether (and how far) it helps an employer’s justification defence under s.15 that a reasonable adjustment claim fails because the employer could not reasonably have known of the relevant disadvantage: cf Knowledge of causal link with disability under s.15 EqA>Justification defence: the new battleground?

Knowledge of employer etc

Can a court deciding whether unfavourable treatment is justified take into account things which the employer or service provider etc did not know, and perhaps could not reasonably be expected to know? See Knowledge of causal link with disability under s.15 EqA>Justification defence: the new battleground?

Four-stage structured approach

The Supreme Court in Akerman-Livingstone v Aster Communities Ltd (bailii.org), 2015, laid down a four-stage structured approach for deciding whether unfavourable treatment of a disabled person was a “proportionate means of achieving a legitimate aim”. As mentioned above, in practice tribunals do not normally cite this case or explicitly go through each stage. However a tribunal decision could be challenged if it is not consistent with the substance of the Akerman decision. The structured approach set out by the Supreme Court is as follows:

  1. Is the objective sufficiently important to justify limiting a fundamental right? Elsewhere it has been said the aim must represent a ‘real, objective consideration’ which is not itself discriminatory (Statutory EqA Employment Code, below), and the employer etc must have a ‘real need’ (Allonby case below).
  2. Is the measure rationally connected to the objective?
  3. Are the means chosen no more than is necessary to accomplish the objective? Could alternative measures have met the legitimate aim, without such a discriminatory effect? If proportionate alternative steps could have been taken, the unfavourable treatment is unlikely to be justified. One consequence of this is that if reasonable adjustments could have been made instead, it will normally be difficult to show justification: above Relevance of reasonable adjustments.
  4. The disadvantage caused to the claimant must not be disproportionate to the aims pursued. The employer etc must show that its action strikes a fair balance between its need to accomplish its objectives and the disadvantages thereby caused to the claimant as a disabled person. It is not enough that there is a legitimate aim and the means used are necessary to achieve it. The Supreme Court said “there are some situations in which the ends, however meritorious, cannot justify the only means which are capable of achieving them”. It seems from the Akerman judgments that on a s.15 claim one looks at the disadvantage caused to the particular claimant.
    (Contrast Indirect discrimination (below) where it may be a group test, ie. one looks at the disadvantage to people with that disability.)

Also in the 2012 case of Homer v Chief Constable of West Yorkshire Police (bailii.org) the Supreme Court gives a summary of the objective justification defence (in the context of indirect age discrimination).

An example of an influential pre-Equality Act case is Allonby, holding that the legitimate aim should reflect a “real need” of the employer, and needs to be weighed against the impact on the claimant:

Allonby v Accrington and Rossendale College and Others (bailii.org), Court of Appeal, 2001
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 decided this was justified.

The Court of Appeal held the tribunal had not taken the correct approach to the question. Sedley LJ said: “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.”

Indirect discrimination

This page focuses on the justification defence under s.15 EqA. For disability that is much more important than indirect discrimination (s.19 EqA). Largely the same considerations apply to justification under both s.15 and s.19, but there are some differences:

  • Firstly, on a claim for indirect discrimination under s.19 the employer etc has to justify the provision, criterion or practice (PCP), whereas under s.15 the employer etc must justify the unfavourable treatment. Under s.19 it is not a matter of justifying whether an exception should have been made for the claimant.
  • Also for indirect discrimination (s.19) it may be a group test, ie one looks at the disadvantage to people with that disability.

In both cases see Group test for objective justification of indirect discrimination?

Some examples on stammering

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

Example: Employer denies communication skills were a factor in turning person down for job

An employer might argue that the person was turned down because of the answers they gave at interview (for example), and that their communication skills relating to their stammer had nothing to do with the employer’s decision.

If the tribunal disbelieves this on the evidence (eg from looking at the interviewers’ notes) and decides that the person’s communication resulting from their stammer was at least a factor in turning the person down, it may be difficult for the employer to show justification, because the employer has effectively just been arguing that it did not have a real need for someone with better communication abilities than the claimant.

Example: Turned down for accountancy job due to communication skills

An accountancy job involves a significant amount of work on the telephone, including with the firm’s clients, and also in meetings. The firm turns down a woman with a stammer because it is concerned 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 proportionate means of achieving a legitimate aim. A legitimate aim might be, for example, providing a good service to clients. Presumably any evidence of 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 [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 disability being found able to do a job where oral communication skills are particularly important. The Panel noted that judges have 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 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 proportionate means of achieving a legitimate aim. This is likely to be very difficult. The bank might argue that serving (other?) customers within a reasonable time was a legitimate aim. However, is this situation significantly different from a customer whose transaction at the counter takes a long time for some other reason? Further, the bank’s action is not likely to be proportionate if it could reasonably have taken alternative steps, such as bringing on another cashier (step 3 of the Four-stage structured approach above). Even if that were not possible, it seems likely a court would find that the discriminatory effect of the customer being asked to go to the back of the queue bank outweighs the aim of serving customers promptly (step 4).
More: Example: Queue in bank.

Objective assessment by tribunal

The employment tribunal (or the County Court etc) reaches its own decision on whether the unfavourable treatment was a proportionate means of achieving a legitimate aim. The tribunal 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 allows 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 (bailii.org), Court of Appeal, 2005 – followed by numerous other cases:
The Court of Appeal said “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 returning from maternity leave, who was told a role could not be done part-time/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 (bailii.org), Supreme Court, 2012
“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.” (paragraph 20)

Applying this to disability

Since the Equality Act 2010 extended the objective justification defence to disability as well, courts and tribunals have taken the same approach in disability cases. As well as the Supreme Court decision in Akerman (above), examples of Employment Appeal Tribunal decisions include Burdett v Aviva 2014 and Hensman v Ministry of Defence 2014, both discussed above under Balancing exercise.

The courts have had the odd wobble on this, the main one being by the Court of Appeal in O’Brien v Bolton St. Catherine’s Academy, 2017. However the following year in City of York Council v Grosset, the Court of Appeal (at para 55) described that as just a remark on the particular facts of the case and re-asserted that the objective justification test is plainly distinct from that for unfair dismissal.

Other aspects of assessment being objective

See above Outcome vs process and Justification may not have been considered at the time.

Issues of cost

The saving or avoidance of costs does not without more amount to a “legitimate aim” in seeking to justify discrimination.

This is sometimes called the “cost plus” principle. It has often been thought to mean that although cost alone is no justification, cost plus other factors may justify discrimination. Accordingly it has led to employers etc looking for some further reason for the discrimination, the “plus” element, so that cost can be put into the balance alongside the further reason.

However the Court of Appeal in Heskett below said that the “cost plus” label can be misleading, and has led to people taking an inappropriately mechanistic approach. The court said – at para 83 and 89 of its judgment – that the essential question is whether, looking at the total picture, the employer’s aim in acting in the way that gives rise to the discriminatory impact can most fairly be described as no more than a wish to save costs. If so, the defence of justification cannot succeed. As the Supreme Court said in O’Brien (below):

“It is one thing to set benefits at a particular level for budgetary reasons. It is another thing to pay women less than men because it is cheaper so to do. Sex discrimination is wrong whether the state (or the employer) is rich or poor.”

The Court of Appeal in Heskett decided that this principle does not prevent an employer from relying on a legitimate aim of needing to reduce its expenditure, and specifically staff costs, in order to balance its books. The court drew a distinction between an employer which simply wishes to reduce costs and one which is, in effect, compelled to do so. However Heskett was a case of indirect age discrimination, and I suggest that even the need to meet a budget would not, for example, have justified the Ministry of Justice in cutting pensions for part-time judges but not for full-time ones (cf the O’Brien case below).

Even where budgetary issues can be a legitimate aim, this does not mean the justification defence necessarily succeeds. The employer etc still needs to show that its action is justified – that is a proportionate means of achieving the legitimate aim.

Heskett v Secretary of State for Justice, Court of Appeal, 2020
The claimant was a probation officer working for the National Offender Management Service (NOMS). It operated a system of increasing pay for each year an employee had been in the job. The government imposed a pay ‘freeze’. Following negotiations with the union, NOMS brought in a new pay scheme under which annual increases were much reduced. This disproportionately affected younger employees such as the claimant, who would take much longer to move up the pay band to levels that other colleagues had already reached.

The employment tribunal rejected a claim for indirect age discrimination. It held that the reduced rate of pay progression was justified, given that NOMS’s budget for paying its employees had been frozen. The claimant appealed, arguing that cost alone could not be sufficient justification.

The appeal was dismissed. The Court of Appeal upheld the “cost plus” principle in the sense that the saving or avoidance of costs does not without more amount to a “legitimate aim” when seeking to justify discrimination. However it said this principle did not prevent an employer such as NOMS from relying on a legitimate aim of needing to reduce its expenditure, and specifically staff costs, in order to balance its books.

The employer still had to show that the measures complained of were a proportionate means of achieving that aim. NOMS had done so in this case.

O’Brien v Ministry of Justice (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 government to pay a pension to circuit judges (who are full-time) but not to recorders (part-time judges). The government’s argument that if recorders get a pension, then the pensions payable to circuit judges would have to be reduced was a pure budgetary consideration. The court said the government may decide how much to spend on its justice system, but within that system the choices it makes must be non-discriminatory. Potential discrimination can only be justified by reference to a legitimate aim other than the simple saving of cost. The government cannot decide to pay women less than men because it is cheaper to do so. Nor can it deny pensions to part-time judges simply because it is cheaper.

The Ministry accepted that cost alone cannot justify discriminating against part-time workers, but argued that “cost plus” other factors may do so. The Supreme Court described this as “a subtle point which is not without difficulty.”

Woodcock v Cumbria PCT (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. On the facts this early retirement pension would have been a “pure windfall” for the claimant (the Court of Appeal in Heskett above saw this point as important). The court said that 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.

A post-Brexit EU case on disability, which does not bind British courts but they “may” have regard to it:

VL v Szpital Klinicnzy, EU Court of Justice, 2021
The employer offered a monthly allowance to disabled people who submitted a disability certificate after a certain date. This was to encourage people to submit certificates, because certificates saved the employer money. However it did not pay the allowance to disabled people who had submitted a certificate before that date.

The EU Court held this could be indirect discrimination (or direct discrimination) depending on the findings of the national court. If indirect discrimination, said the EU Court, the employer would not be able to justify its practice since the intended purpose seems to have been to save money (subject to verification by the national court).

On the relevance of cost to the reasonableness of adjustments, see Reasonable adjustment rules>Cost of reasonable adjustments.

Justification test does not seem to vary depending on whether EU law applied

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 might be argued that UK courts should apply a somewhat different justification test (not based on EU law) where that EU directive did not apply – for areas other than employment such as provision of services, and perhaps even in employment where s.15 is being applied.

However the Supreme Court decision in Akerman (above) seems to be authority for applying a uniform approach to justification throughout the Equality Act (apart from specific differences between ss.19 and 15). In Akerman the Supreme Court applied the normal employment law cases on justification to a housing case not governed by the EU directive, and specifically to s.15 EqA which does not have an obvious conterpart in the EU directive. Also the fact that the Equality Act uses the same wording on justification for all areas, and that the Act is aimed at harmonising equality law, are arguments against drawing a distinction.

Guidance in Employment and Services Codes

Note that case law (discussed above) is much more important than what the Codes of Pratice say.

Legitimate aim

Paragraphs 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) say that a “legitimate aim”:

  • should be legal,
  • should not be discriminatory in itself, and
  • must represent a real, objective consideration.
  • Although reasonable business needs and economic efficiency may be legitimate aims, an employer or service provider solely aiming to reduce costs cannot expect to satisfy the test. For example, the employer/ service provider cannot simply argue that to discriminate is cheaper than not to discriminate. See above Issues of cost.

What is proportionate?

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

  • Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. A tribunal or court may wish to conduct a proper evaluation of the discriminatory effect of the action etc as against the employer’s (or service provider’s) reasons for it, taking into account all the relevant facts.
  • European law (on which the UK law was based) views treatment as proportionate if it is an “appropriate and necessary” means of achieving a legitimate aim.
  • “Necessary” does not mean that the action etc 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.
  • The greater financial cost of using a less discriminatory approach cannot, by itself, provide a justification. Cost can only be taken into account as part of the employer’s (or service provider’s) justification if there are other good reasons for adopting it. See above Issues of cost (This statement in the Code of Practice is probably misleading in the light of more recent case law.)
  • If the employer or service provider has not complied with its duty to make reasonable adjustments that would have prevented or minimised the unfavourable treatment, it will be difficult for the service provider to show that the treatment was proportionate (Employment Code para 5.21, Services Code para 5.34 and 6.22, FHE Technical guidance para 5.33). See above Relevance of reasonable adjustments for cases on this. However, complying with the reasonable adjustment duty does not mean the objective justification test is met (Employment Code para 5.22 and Boyers case above).
  • The more serious the disadvantage caused by the discriminatory action etc, the more convincing the objective justification must be. (Services Code para 5.35 and FHE Technical guidance para 5.34, but also likely apply in the employment field)
  • As regards provision of services or education, a significant factor in determining whether a public authority is able to satisfy the justification test is the extent to which the authority has complied with their public sector equality duty. (Services Code para 5.36, FHE Technical guidance para 5.35)

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)

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.

Provision of services

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

  • ensuring that services and benefits are targeted at those who most need them,
  • the fair exercise of powers,
  • ensuring the health and safety of those using the service provider?s service or others, provided risks are clearly specified,
  • preventing fraud or other forms of abuse or inappropriate use of services provided by the service provider, and
  • ensuring the wellbeing or dignity of those using the service.

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.

Universities etc

FHE Technical guidance para 5.29 gives some examples of legitimate aims for universities, FE colleges and such like:

  • ensuring that education, benefits, facilities and services are targeted at those who most need them
  • the fair exercise of powers,
  • ensuring the health and safety of those using the education provider’s service or others, provided risks are clearly specified and backed by others,
  • preventing fraud or other forms of abuse or inappropriate use of services provided by the education provider,
  • ensuring the wellbeing or dignity of those using the education provision, and
  • maintaining academic and other standards.

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

20th anniversary of stammeringlaw, 1999-2019