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Justification defence for indirect discrimination is easier than for other disability claims

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Last updated 17th September 2024 (part update 4th June, 2025).

The usefulness of indirect discrimination (s.19) for disabled claimants is limited by its being easier for employers and service providers etc to justify, compared with specific disability claims. Under s.19 the question seems to be whether it was justified to apply the provision, criterion or practice to people generally, given its impact on disabled people. However under the reasonable adjustment duty, for example, a claimant can argue they should have been treated differently from other people.

Justification under s.15 EqA is discussed on Objective justification defence. This page focuses on ways in which the s.19 defence differs from it.

Summary

For disabled claimants, the usefulness of indirect discrimination under s.19 or 19A Equality Act (EqA) is likely to be limited. This is mainly because the justification defence is more generous to employers or service providers etc than the equivalent defences to claims based specifically on disability.

By way of reminder, indirect discrimination is where a provision, criterion or practice (PCP) is applied to people generally, but puts people with a protected characteristic (in our context, people with a particular disability) at a particular disadvantage. The employer or service provider etc has a defence if it shows that the PCP is a proportionate means of achieving a legitimate aim, known as “justification”.

On a claim for indirect discrimination, the courts are likely to consider whether the employer etc was justified in applying the PCP to people generally, given the disparate impact on disabled people, rather than whether the claimant should have been treated differently due to their disability. If the PCP is justified, it is not indirect discrimination under s.19. But there may still be a breach of the reasonable adjustment duty for failing to take steps specifically for the disabled claimant, if the employer etc has the requisite knowledge. For example:

Minis Childcare v Hilton Webb, below, 2024
The claimant had a visual impairment which meant she needed documents in larger print. The EAT implied it was likely to be justified under s.19 (indirect discrimination) for her employer to produce documents generally in 10 to 12 point font sizes, as many organisations do. So her indirect discrimination claim was likely to fail.

The reasonable adjustment duty (s.20) could require the employer to create larger font documents specifically for her. However, she had not told the employer at the time that she needed larger fonts. Therefore her reasonable adjustment claim too had failed, because the employer did not have actual or constructive knowledge of her disability and disadvantage.

Note: It seems to have been accepted that the employer could be liable for indirect discrimination without this knowledge: Knowledge of disability in indirect discrimination.

So the reasonable adjustment duty could require the employer etc to make an exception from the PCP for the claimant, whereas that was not the purpose of indirect discrimination. More below Only the PCP needs to be justified, not the failure to make an exception.

The Minis Childcare case illustrates that the sensible thing will normally be to tell the employer etc of the disability and need for adjustments: Recruitment: Should I tell the employer I stammer? Most importantly, this makes it much more likely that adjustments will actually be made. Also, there should be a stronger claim under the EqA if the employer etc fails to make adjustments.

Some other points below:

Otherwise similar to justification test under s.15 EqA

Apart from the differences discussed on this page, the justification test under s.19 should be the same as that under s.15 (discrimination arising from disability). The main question is whether the PCP is a proportionate means of achieving the legitimate aim of the employer or service provider etc. The court balances the needs of the employer etc against the discriminatory impact of the PCP on the protected group. It is important whether the aim could reasonably have been achieved in a way that reduces the discriminatory impact. These issues are discussed (in the context of s.15) on my Objective justification defence page.

However, this page focuses on important differences between justification under s.19 and s.15, in that:

Only the PCP needs to be justified under s.19, not the failure to make an exception

S.19 EqA says that for indirect discrimination, it is the PCP – the general measure – that has to be justified. With some exceptions (below Rogue cases? Taking an “individual” approach), cases have held this to mean that under s.19 it is not a question of whether the way the employer etc treated the particular claimant in the circumstances of their case was justified, eg whether the employer should have made an exception for the claimant. In Minis Childcare below, the EAT said that under s.19, to avoid discrimination the employer etc no longer applies the PCP to anyone, but adopts a different PCP which does not result in the disparate impact. So it is not a matter of just treating the claimant differently. (This does not mean that the facts of the individual case are irrelevant though: below Relevance of individual facts even if “group” approach taken.)

This test contrasts with s.15 EqA (discrimination arising from disability) where it is the unfavourable treatment of the individual claimant that has to be justified (Objective justification defence). It also contrasts with the reasonable adjustment duty where, at least in employment claims, the issue is whether it would have been reasonable to treat the claimant differently from non-disabled people (below Technical note: Distinction with reasonable adjustment duty and s.15 EqA). This normally means it is easier for the employer etc to show justification under s.19, than to show justification/reasonableness under s.15 or the reasonable adjustment duty. Minis Childcare illustrates the difference between s.19 and reasonable adjustments:

Minis Childcare v Hilton Webb, Employment Appeal Tribunal (EAT), 2024
The employer produced documents in font sizes used by most organisations, 10 to 12 point. The claimant argued that these font sizes put her and others with her visual impairment at a disadvantage. She said she needed at least 18 point. However, she had not told her employer she needed a larger font. Her reasonable adjustment claim had failed on the grounds on the grounds that the employer did not know of her disadvantage.

The employment tribunal (ET) held that the employer’s use of 10-12 point was not a proportionate means of achieving a legitimate aim (ie not justified), and found the employer liable for indirect disability discrimination (s.19). The EAT overturned the ET decision, sending it back for reconsideration. The EAT implied that the employer’s use of 10 to 12 point fonts for people generally was likely to be justified,

One criticism was that the ET decision had said the smaller fonts could not be proportionate when the simple thing to do was to provide documents in larger font. However, said the EAT, the ET had not addressed whether it was proportionate to have to use 18 point font for all employees. Under s.19, to avoid discrimination the PCP (10-12 point font size) is no longer applied to anyone. The way to avoid the discrimination was to adopt a different PCP that does not result in such disparate impact.

What would that mean in this case? Should all documents be printed in 18 point or larger? Should the documents be printed in a range of sizes, and different formats? Common sense suggested, said the EAT, that it was not objectionable for documents to be provided in a standard format provided it was made clear they could also be provided in a different format if required, including for employees with disabilities.

That case clearly draws a distinction between indirect discrimination and reasonable adjustments. The font size used in documents for people generally was likely to be justified, so there was no indirect discrimination under s.19. However if the employer had known of the claimant’s problem with the normal font size, the employer would likely have been required to produce versions in a larger font for her, under the reasonable adjustment duty.

Another example:

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.

The Supreme Court also made this point in Homer v Chief Constable of West Yorkshire Police (bailii.org):

As the EAT said, an ad hominem [ie individual] exception may be the right answer in personnel management terms but it is not the answer to a discrimination claim. Any exception has to be made for everyone who is adversely affected by the rule.

See para 25 of the Supreme Court decision for the context.

Looking at the disadvantage to the group rather than individual claimant

The above is probably the most important difference of s.19 justification compared with that for other disability claims. Another difference – linked with that one – is that under s.19 it seems that the needs of the employer or service provider etc are balanced against the discriminatory impact of the PCP on people with that disability under s.19, rather than against the discriminatory impact on the individual claimant specifically. (However there are other cases where the courts take a more individual approach (below).)

Barry v. Midland Bank Plc (bailii.org), House of Lords [1999] UKHL 38
In this equal pay case, the House of Lords said the “ground relied upon as justification must be of sufficient importance for the national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women or men as the case may be, the more cogent must be the objective justification.

Note: One might say that people of the same sex on which there is a disparate impact, in that case, are equivalent for our purposes to people with the same disability.

In University of Manchester v Jones the Court of Appeal said, for example, that the number of people who suffer the discriminatory effect can be relevant.

University of Manchester v Jones, Court of Appeal [1993] ICR 474]
In an indirect sex discrimination claim Ralph Gibson LJ (at 497G) said: “The industrial tribunal is required to determine the discriminatory effect of the requirement [now the PCP]. That seems to me to require the industrial tribunal to ascertain both the quantitative effect, i.e., how many men and women will or are likely to suffer in consequence of the discriminatory effect, and, also, what is the qualitative effect of the requirement upon those affected by it, i.e., how much damage or disappointment may it do or cause and how lasting or final is that damage?

I therefore do not agree that it is improper in the balancing exercise to take into account the particular hardships which have lain in the way of the particular applicant provided that proper attention is paid to the question of how typical they are of any other men and women adversely affected by the requirement. …

Rogue cases? Taking an “individual” approach to justification in indirect discrimination

However, the courts are not always consistent in applying those principles. The courts 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 that 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.

Ministry of Defence v Brown & College of Policing (bailii.org), EAT, 2024
The EAT overturned an employment tribunal decision which had upheld a claim of indirect sex discrimination by a woman dismissed from the Ministry of Defence Police (MDP) for failing to meet a physical fitness standard, in the “bleep test”. The employment tribunal had found there was indirect discrimination by MDP not providing her with the opportunity of taking an alternative test such as the Chester Treadmill, and by failing to provide her with assistance recommended by the College of Policing in familiarising herself with the test and in taking it. The EAT held that the tribunal had not given sufficient reasoning on why she should have been offered an alternative test. The tribunal should therefore reconsider whether or not the standard applied by the employer was justified (proportionate).

However, the EAT – and presumably the parties – did not question the employment tribunal’s approach (as the EAT understood it) of assessing both the proportionality of the MDP’s general policy, which the tribunal found to be proportionate, and also proportionality in terms of the application of the policy to the claimant (para 46). At para 35 the EAT cited Buchanan v Commissioner of Police of the Metropolis as authority for saying that where the employer’s policy permits a number of responses to an individual’s circumstances, it is necessary to examine the policy’s particular application.

Comment: The EAT did not mention that Buchanan was specifically on s.15 EqA, rather than indirect discrimination: see Justification under s.15: Is it sometimes the general practice that must be justified? However, even if proportionality of the policy in the claimant’s individual circumstances is not a legal requirement, it may be proportionate for a general policy to have to offer alternatives to the normal policy, such as the treadmill test here, as well as appropriate assistance.

Relevance of individual facts even if “group” approach taken

I suggest that even if the court takes an approach focusing on the PCP generally and its impact on the protected group, the evidence of the individual facts of the claimant’s case may 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.

This was a direct rather than an indirect discrimination claim. I suggest the case 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 application in the individual case that needed to be justified. Even so, it can be seen that the evidence brought by the professor who was more severely impacted swayed his employment tribunal to find in his favour.

Also the Court of Appeal in University of Manchester v Jones, above accepted that hardships of the particular claimant could be taken into account. The court there said:

I therefore do not agree that it is improper in the balancing exercise to take into account the particular hardships which have lain in the way of the particular applicant provided that proper attention is paid to the question of how typical they are of any other men and women adversely affected by the requirement. …

Professional exams and standards

The justification defence under s.19, including the limitations discussed above, can be important for disability in claims against professional and trade qualification bodies. 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. The claimant may also seek to argue though, that the contested measure was not actually a competence standard.

Group approach in assessing whether there is a disadvantage under s.19

Apart from the justification defence, the “group” aspect is important at the earlier stage of assessing whether the protected 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.

Technical note: Distinction with reasonable adjustment duty and s.15 EqA

My Objective justification defence page deals with the justification defence under s.15 EqA (discrimination arising from disability). Under s.15 it is the unfavourable treatment of the particular claimant that has to be justified (apart from exceptional cases as discussed on Justification under s.15: Is it sometimes the general practice that must be justified?).

On the reasonable adjustment duty:

  • In employment claims, the issue is essentially whether it would have been reasonable for the employer to adjust the PCP – ie to do something different for the claimant – given how the PCP puts the particular claimant at a disadvantage compared with non-disabled people (Reasonable adjustment rules: employment).
  • In non-employment claims, for example against service providers, the test is somewhat different. It looks at people with the same disability rather than just the individual claimant (Reasonable adjustments by service providers: rules). However, here too, reasonable adjustments very much include making exceptions from a general PCP to treat disabled people differently.
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