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

Objective justification defence

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This page does not apply outside Great Britain.
Last updated 29th December 2015 (part update 31st October 2018).

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’.

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 (s.19 EqA) which 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 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? The most important aspect of the test is whether the action was ‘proportionate’.
  • The Supreme Court has set out a four-stage structured approach to deciding whether the test is met.
  • 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 harder for employers etc to show justification than was the case under the Disability Discrimination Act 1995.
  • Cost alone is not sufficient justification.
  • 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’.

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’. Can the employer show that turning the person down was a proportionate means of achieveing a legitimate aim?

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 to make. Accordingly this page focuses 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.

Four-stage structured approach

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 Supreme Court in Akerman-Livingstone v Aster Communities Ltd (link to bailii.org), 2015, laid down a four-stage structured approach for this. It must be said that employment tribunals do not seem to expicitly use this structured approach, but they and the Employment Appeal Tribunal do focus on there being a balancing exercise, weighing such things as the employer’s aim, the detriment to the disabled person, and any possible alternative courses of action (including reasonable adjustments) which could have been adopted to avoid or reduce the detriment. In any event, 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 and Elias cases 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.
  4. The disadvantage caused to the claimant must not be disproportionate to the aims pursued. So it is not enough that there is a legitimate aim and the means used are necessary to achieve it. There are situations in which the the ends, however meritorious, cannot justify the only means which is 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. (On a claim for indirect discrimination it may be a group test, ie. one looks at the disadvantage to people with that disability.)

There is a balancing exercise. Was the aim sufficiently important? Could the aim have been achieved by less discriminatory means? Does the legitimate aim outweigh the discriminatory effects of the unfavourable treatment?

Whether there was objective justification is a matter for the tribunal. 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).

The burden is on the employer or service provider etc to show that the unfavourable treatment was objectively justified.

Some examples

These examples illustrate how the objective justification defence may operate with disability. However, case law is till developing, 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 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 propotionate 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 above). Even if that were not possible, it seems likely a court would find that the discriminatory effect of the customer of 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 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 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 (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)

Applying this to disability

Applying the objective justification defence to disability is relatively new, but the courts and tribunals do seem to be taking 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 – a tribunal had found that dismissal because of sexual assaults in the workplace was justified. The EAT said it had not adopted correct approach, and the case must be reconsidered.
  • Hensman v Ministry of Defence (bailii.org) 2014 – a tribunal had held that dismissal for covert filming in workplace shower was not justified. The EAT said that in the balancing the exercise which the tribunal must perform, the tribunal had failed to assess particular issues weighing on employer’s mind, so the decision should be reconsidered.

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].

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:

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. 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. 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’.

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).

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 (below) 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. Also in Sturmey v Weymouth and Portland Borough Council (bailii.org), 2015, the EAT said the Woodcock decision depended on ‘very particular circumstances’.

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. As to cost under the reasonable adjustment rules, see Reasonable adjustment rules>Cost of reasonable adjustments.

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’

  • 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)

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.

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,
    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 justifaction test is the extent to which the authority has complied with their Public Sector Equality Duty. (FHE Technical guidance para 5.35)

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