The ‘objective justification’ defence as it applies to indirect discrimination (which is relatively unimportant for disability) may be based on the group of disabled people affected by the provision, or practice, rather than the individual claimant. However, what practical effect if any this has is unclear.
For ‘discrimination arising from disability’, which is the more usual type of claim, and also for indirect discrimination which is less usual in disability cases, the employer has a defence if it shows its action (or its provision criterion or practice in the case of indirect discrimination) was a proportionate means of achieving a legitimate aim This is known as the ‘objective justification’ defence.
In the context of discrimination arising from disability, it seems the ‘objective justification’ test applies on an individual basis. One looks at the discriminatory effect on the individual claimant, and balances the considerations applicable to that individual. The same is true of the reasonable adjustment duty.
For indirect discrimination however the objective justification may apply more on a group basis. See the Mba case below. Indirect discrimination applies where there is a provision, criterion or practice (PCP) which applies to people generally but puts people with a particular disabilty at a disadvantage. The employer has a defence if it shows the PCP is a proportionate means of achieving a legitimate aim.
Does this matter? There are two reasons why often it does not matter.
- Firstly, indirect discrimination is not that important in the context of disability, because easier claims will often be available. See below Limited relevance to disability.
- Secondly, it is not clear how far if at all the group approach will make a difference in practice compared with an individual one. See below Does a group approach make much difference?
Limited relevance to disability
Any group approach to assessing objective justification as regards indirect discrimination is normally not that important in practice in the context of disability, because easier claims will often be available:
A person who stammers is put under an employer’s capability procedure because she does not take her turn at answering the telephone in the office.
On a claim for discrimination arising from disability, in deciding whether there is objective justification for the employer’s action, it seems the tribunal would look at the discriminatory effect on this individual, bearing in mind her individual capabilities – including the difficulty she has with the phone.
Similarly on a claim for reasonable adjustments the tribunal would look at the individual circumstances. (see the Morris case, discussed in Indirect discrimination: Comparison with reasonable adjustment duty).
However, on a claim for indirect discrimination the tribunal may look at the discriminatory effect on people generally who share the same disability (whatever than means) rather than specifically on her, though perhaps counterbalancing this may be an argument that if fewer disabled people are affected then making an adjustment has less impact on the employer.
An exception where any differences in the objective justification defence for indirect discrimination may be more important are the EqA rules on Trade and professional exams, because if one wants to argue that a ‘qualificatiosn body’ should not be applying a particular competence standard, the only type of discrimination claim one can use is ‘indirect discrimination’.
If one looks at cases on indirect discrimination, then (so far as I have seen) there is not much made of the objective justification test being a group one. The ‘group’ aspect is more obvious at the earlier stage of assessing whether the group is put at a particular disadvantage by the provision, criterion or practice (PCP). This is a precondition for indirect discrimination applying at all, but is not part of the objective justification defence.
For example in sex discrimination cases where the employer seeks to insist that a job can only be full-time, in applying the objective justification test the focus seems to be on that particular job:
Hardy & Hansons plc v Lax (link to bailii.org), 2005, Court of Appeal
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.
A case which indicates the group approach can sometimes be relevant though is Mba v LB Merton, though how far if at all there is much practical difference is not clear:
The Mba case
Mba v LB Merton (link to bailii.org), 2013, Court of Appeal
The claimant was a Christian. The Court of Appeal held that in the circumstances of the case it was justified to require her to work on Sundays. Accordingly her claim for indirect discrimination failed. The decision is of wider interest because the EAT commented: “…what has to be considered is not the discriminatory impact of a provision, criterion or practice in respect of a given Claimant but the discriminatory impact of that provision, criterion or practice [PCP] in respect of a group taken as a whole.” The group taken in that case were ‘Christians’. Where a PCP conflicted with a belief held by fewer people in the group, there would be less interference with religious belief than where it is held by all in the group, so the PCP would be somewhat easier to justify.
In the Court of Appeal Elias LJ commented as regards discriminatory impact: “in general the greater the impact, the harder it is to justify the provision”, so it would be relevant if the PCP impinged upon a greater number of potential adherents (para 31), though he also seemed to think that number of people affected in the particular employer was important (para 33). However, in assessing impact on the employer, the fewer people in the workforce affected, the easier it might be to accommodate their needs, ie in this case allow them not to work Sunday (para 36).
The majority of the Court of Appeal held that this approach to discriminatory impact in justifying discrimination for religion or belief should not apply to religious discrimination, because of the ECtHR decision in Eweida. But it seems the approach would still apply to discrimination as regards other protected characteristics such as disability.
So according to the Mba case, it seems one looks at group impact. The practical implications of this if any are unclear. I shall be expanding this page on that.