The ‘objective justification’ defence as it applies to indirect discrimination (which is relatively unimportant for disability) may technically be based on the group of disabled people affected by the provision or practice, rather than the individual claimant. However, courts in practice sometimes seem to look at the individual circumstances, and they may well be relevant in practice.
For discrimination arising from disability (s.15), which is the more usual type of claim, and also for indirect discrimination (s.19) which is less usual in disability cases, the employer has a defence if it shows its action (or its provision, criterion or practice in a claim for indirect discrimination) was a proportionate means of achieving a legitimate aim This is known as the ‘objective justification’ defence.
On a claim for discrimination arising from disability (s.15), the “objective justification” test operates on an individual basis. The court 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 (s.19) the objective justification test may operate more on a group basis. Indirect discrimination is where there is a provision, criterion or practice (PCP) which applies to people generally but puts people with a particular disability at a disadvantage – unless the employer etc shows that the PCP is a proportionate means of achieving a legitimate aim. There is authority that for s.19 it is the PCP as a whole which must be justified, so it is not a question of whether an exception should have been made for the claimant, and a court in its balancing exercise considers the detriment to the protected group as a whole (eg people with that type of disability). See below Taking a “group” approach to justification of indirect discrimination. However:
- The courts are far from consistent in applying those principles. They sometimes seem to consider whether it was proportionate to apply the PCP in the claimant’s individual case, given the particular individual circumstances: below Taking an “individual” approach in indirect discrimination cases.
- Anyway I suggest that even if the court takes a more “group” approach, in practice the evidence of the individual facts of the claimant’s case is likely to inform the court’s consideration of what is justified. Below Relevance of individual facts even if “group” approach taken.
- Indirect discrimination (where the “group” test may be an issue) is not normally that important in the context of disability, because easier claims will often be available. Below Limited relevance to disability.
Taking a “group” approach to justification of indirect discrimination
An employer or service provider etc can be liable for indirect discrimination under s.19 EqA if, broadly, they apply a provision, criterion or practice (‘PCP’) to people generally, but the PCP puts people with a particular disability (including the claimant) at a particular disadvantage in comparison with people who do not have that disability. However the employer or service provider etc has an objective justification defence if it shows the PCP is a proportionate means of achieving a legitimate aim.
My objective justification page focuses on the justification defence under s.15 EqA (discrimination arising from disability). Largely the same considerations apply to the justification defence under s.19 as well, but there are some differences, which are interlinked.
Group approach: What has to be justified
Under the terms of s.19 it is the PCP – the general measure – that has to be justified. This contrasts with s.15 where it is the unfavourable treatment of the individual claimant that has to be justified.
Group approach: Not a question of whether exception should be made for the claimant
Linked with this, there is authority that because under s.19 it is the PCP as a whole which has to be justified, it is not a question of whether the employer was justified in refusing to make an exception for the claimant. (However in fact the courts sometimes take a more individual approach (below).)
City of Oxford Bus Services Ltd t/a Oxford Bus Company v Harvey, EAT, 2018
The employer’s practice of distributing shifts to bus drivers resulted in the claimant, a Seventh Day Adventist, being required to work on his Sabbath. Was the employer’s practice unlawful as indirect religious discrimination? The EAT held that the tribunal should have considered whether the employer’s practice as a whole was justified, not whether the employer was justified in refusing to make an exception for the claimant.
See below for a Comparison with reasonable adjustment duty.
Group approach: Looking at the disadvantage to the group rather than individual claimant
Again linked with those points, there are cases indicating that in looking at whether a PCP is justified for s.19, what has to be balanced against the aims of (and impact on) the employer etc is the disadvantage suffered by the protected group of people (such as people with a stammer?) rather than primarily the disadvantage suffered by the individual claimant. For s.15 it is just the detriment suffered by the individual claimant that is relevant. One s.19 case, Mba v LB Merton, indicated that the number of people in the group affected could be relevant, though that may cut both ways. (However there are other cases where the courts take a more individual approach (below).)
Mba v LB Merton (bailii.org), Court of Appeal, 2013
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 (bailii.org) 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 the 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 were 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 potentially the approach could still apply to discrimination as regards other protected characteristics such as disability.
Taking an “individual” approach to justification in indirect discrimination cases
However the courts are far from consistent in applying those principles. They sometimes seem to consider whether it was proportionate to apply the PCP in the claimant’s individual case, given the particular individual circumstances:
Owen v Amec Foster Wheeler Energy, Court of Appeal, 2019
The Court of Appeal held it was not indirect disability discrimination for an employer to refuse to send the claimant on an assignment to Dubai because of high medical risk. The court looked at the claimant’s individual circumstances. For example an occupational health practitioner had said that Dubai had a higher medical risk rating than the UK, and that increased heat and humidity would increase the risk for the claimant’s particular health conditions.
In any event individual circumstances may be relevant in assessing a general practice, like 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 (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.
Also as regards employers insisting on posts being full-time or anti-social hours, I have not seen indirect sex discrimination decisions weighing how many women would be able to work in those jobs. The focus is on whether the requirements set by the employer are objectively justified. In other words I have not seen the Mba case (above) having an impact there.
Relevance of individual facts even if “group” approach taken
I suggest that even if the court takes a more “group” approach, in any event, the evidence of the individual facts of the claimant’s case is likely to inform the court’s consideration of what is justified. That can be seen in an age discrimination case where the EAT said that tribunals were right to assess the lawfulness of applying a policy to people generally, but could reach different conclusions depending on the evidence before them:
Pitcher v University of Oxford (bailii.org), Employment Appeal Tribunal (EAT), 2021
These were claims by two university professors arguing that a compulsory retirement age under the same Oxford University policy was unlawful direct age discrimination, because it was not justified (EqA s.13(2)). One claimant was a professor of English Literature, and the other of Atomic and Laser Physics. The first lost his employment tribunal claim, but the second won it.
The EAT said the two employment tribunals had rightly viewed the issue of detriment in general terms – justification relating to the compulsory retirement policy, not individual examples of its application (para 186, though I suggest the law is more nuanced than that). Despite this, said the EAT, both employment tribunal decisions could stand. The evidence before each tribunal had been different, and the tribunals had not erred in law in reaching the conclusions they did. For example the Physics professor had given evidence of why options to mitigate the forced retirement, such as contributing in an unpaid Emeritus position, were not viable alternatives for someone like him who required access to laboratory facilities and a research team to continue experimental research.
Permission is being sought to appeal to the Court of Appeal.
This was a direct rather than an indirect discrimination claim. I suggest it is relevant to indirect discrimination though because the EAT went on the basis that in this type of case (like with indirect discrimination) it was the retirement policy rather than its individual application that needed to be justified. But it will be seen that the evidence brought by the professor who was more severely impacted swayed his employment tribunal to find in his favour.
Limited relevance to disability
Any “group” approach to assessing objective justification of 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 (s.15), in deciding whether there is objective justification for the employer’s action, the detrimental impact taken into account by the tribunal in its balancing exercise would be 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 (s.19) the tribunal may perhaps look at the discriminatory effect on people generally who share the same disability (whatever that means) rather than specifically on her.
An exception where any differences in the objective justification defence for indirect discrimination may be more important are the EqA rules on professional and trade qualification bodies, because if one wants to argue that a “qualifications body” should not be applying a particular competence standard, the only type of discrimination claim one can use is indirect discrimination.
As outlined above, indirect discrimination cases often take an “individual” rather than group approach as regards the justification defence. However 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): see Indirect discrimination. This is a precondition for indirect discrimination applying at all, but is not part of the objective justification defence.