- 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 for unlawful discrimination 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 the objective justification defence, if it can show its action was a ‘proportionate means of achieving a legitimate aim’.
- The employment tribunal (or the 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? Does the legitimate aim outweigh the discriminatory effects on the claimant?
- A 2020 decision, DWP v Boyers, indicates that the justification defence should focus on the outcome rather than the employer’s decision-making process. However I suggest that the decision-making process is still important in practice. Below Outcome rather than 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. There the employer etc is not liable anyway unless the adjustments sought are ‘reasonable’.
Firstly where the justification defence does not apply: it does not apply to direct discrimination because of disability. That cannot be justified.
For disability, the most important place where justification does apply is 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 their decision was objectively justified. If they can they have 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, indirect discrimination is likely to be less important because 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.
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 employment tribunal or other court conducts a balancing exercise to decide whether the action by the employer etc was a proportionate means of achieving a legitimate aim. The burden is on the employer to show that it was. The Supreme Court in Akerman set out a “four-stage structured approach” (below) to the test. In practice tribunals do not go through each stage but tend to focus on what was the aim (this is often uncontroversial), and then the main question of whether a fair balance has been struck. However a tribunal decision could be challenged if it is not consistent with principles in Akerman.
Whether there was objective justification is a matter for the tribunal to decide. The tribunal 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 should take into account include 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 possible reasonable adjustments? If proportionate alternative steps could have been taken, the unfavourable treatment is unlikely to be justified.
- 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 in which 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, 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 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 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 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), Employment Appeal Tribunal (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. 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 Equality Act.
The EAT upheld the employer’s appeal. In assessing proportionality under s.15, the tribunal had failed to have regard to relevant considerations and 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 rather than procedure?
The Boyers decision in 2020 indicates that justification should not be decided on the basis of the employer’s decision-making process, ie the actions and thought-processes of the employer’s managers. However as discussed below in My comment on the Boyers decision, I suggest that the decision-making process is still important in practice. Without taking appropriate steps, the employer puts itself at risk of acting unlawfully though ignorance, and also of not being able to show to the employment tribunal that it acted lawfully, given that the onus is on the employer to show justification.
Department of Work and Pensions v Boyers (bailii.org), EAT, 2020
The claimant felt that a colleague X had been bullying and harassing her. She was disabled with migraines and depression. After some time she was moved to a different team and different floor from X. However after the claimant complained about how she was treated by a manager who assisted her on call with a customer who said they were suicidal, she went off sick with work-related stress. She did not return to work except for a six-week work trial at a different location. The employer considered the trial unsuccessful but did not say why. She was not willing to return to her previous workplaces where she believed colleagues and managers had caused her mental health problems. The employer dismissed her due to her ongoing absence.
The employment tribunal upheld her claims for unfair dismissal and discrimination arising from disability (s.15 EqA). Its decision was largely based on failures of the employer’s decision-making process, for example:
– the employer had no up-to-date medical evidence about her,
– her absence was managed by a line manager against whom she had brought a grievance
– several aspects of the work trial were not carried out reasonably, the trial was withdrawn with no explanation or discussion, and managers made no attempt to consider whether other trials were potentially available.
On appeal the EAT overturned the s.15 decision with regard to justification, ie whether the employer had shown that the dismissal was a proportionate means of achieving a legitimate aim. The EAT held the employment tribunal should reconsider this.
The employer’s lawyer pointed to West Midlands Police v Harrod (bailii.org) on indirect age discrimination where the EAT had said: “What has to be shown to be justified is the outcome, not the process by which it is achieved.” What mattered was the practical outcome, not the quality of the decision-making process which led to it.
The EAT accepted this argument. It held the employment tribunal fell into error by basing its analysis of proportionality on the actions and thought-processes of the employer’s managers, rather than on a balancing of the needs of the employer, in the context of the legitimate aims pursued by the dismissal, and the discriminatory impact on the claimant. As regards the employer’s needs, the tribunal had not set out the evidence on the impact on public funds and the strain on other employees caused by her absence. Among other things, the tribunal should consider whether the dismissal was reasonably necessary to achieve the employer’s aim.
Note: The EAT did not decide that the dismissal was justified, only that the employment tribunal should reconsider the case.
My comment on the Boyers decision
We do not know how far this decision will be followed in future. Even assuming it is though, I suggest that in practice the decision-making process is still important, partly because the burden is on the employer to show that its action (the dismissal in this case) was justified.
Take the work trial, for example. 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, the employer may well have difficulty showing that 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? The employer may also be expected to show that other work trials were not reasonably possible.
I think there is a parallel with the rules 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 do, 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.
I suggest that similarly an employer which fails to take appropriate steps in deciding to act in a way which 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, 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 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 then it will normally be difficult for the employer to show justification in a claim under s.15 EqA.
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 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:
- 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).
- Is the measure rationally connected to the objective?
- 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.
- 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 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 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.”
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. See Indirect discrimination>Justification defence.
Also for indirect discrimination (s.19) it may be a group test, ie one looks at the disadvantage to people with that disability.
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  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 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 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 action was objectively justified. 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 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 (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
Applying the objective justification defence to disability is relatively new, but the courts and tribunals have so far 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 (bailii.org) 2014 and Hensman v Ministry of Defence (bailii.org) 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.
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 .
Possible difference where EU law does not apply?
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:
- the objective justification defence is most likely to arise on a claim for ‘discrimination arising from disability’ (EqA s.15), which is not expressly in the relevant European directive (the EU Framework Employment Directive); and
- in any event, that directive only applies in work-related areas.
It is possible that courts may apply 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. This seems to have been the approach taken by the Supreme Court in Akerman (above), which was a housing case not governed by EU directives. 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.
Issues of cost
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 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 the 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 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 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” (the Court of Appeal in Heskett above saw that as important). The court said 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).
As to cost under the reasonable adjustment rules, see Reasonable adjustment rules>Cost of reasonable adjustments.
Guidance in Employment and Services Codes
- 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 below 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. 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:
- 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 is 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 below Issues of cost.
- If the employer or service provider has not complied with its duty to make relevant reasonable adjustments, 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). However, complying with the reasonable adjustment duty does not mean the ‘objective justification’ test is met (Employment Code para 5.22).
- 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 justifaction 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)
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.
FHE Technical guidance para 5.29 gives some examples of legitimate aims:
- 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,
- 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 justifaction test is the extent to which the authority has complied with their Public Sector Equality Duty. (FHE Technical guidance para 5.35)