The Equality Act 2010 outlaws several different forms of discrimination.
While some of these can never be justified, others – namely indirect discrimination, discrimination arising from disability (section 15 discrimination) and direct age discrimination – can be justified in certain circumstances.
Indirect discrimination occurs when a company’s policies, procedures or rules which apply to everyone have the effect that people with a certain protected characteristic are put at a disadvantage when compared with those who do not share it.
Example: If you require employees to work full time, this may indirectly put female employees at a disadvantage, as it is more likely that they will be the primary carer of their children and may need to work part-time or flexibly. Other examples relate to dress codes and when workers are required to work.
Section 15 discrimination occurs when a person is treated unfavourably because of something arising as a consequence of their disability. No comparison with how others are treated is required in these cases. (Note: As with direct disability discrimination, an employer will only be held liable if they know – or ought to have known – of the worker’s disability).
Example: A common example would be dismissing an employee not because they are disabled but due to the long-term absence they have had as a result of their disability.
Direct age discrimination occurs when an employer treats a person less favourably because of their age than they would treat others.
Example: If an employer were to have a policy that only candidates aged 20 to 35 could apply for a position, this would be treating those outside that age group less favourably than those within it on the basis of their age.
NB: Direct age discrimination is the only form of direct discrimination that can be justified.
How to establish a legal defence
In each of the above cases, the employer will have discriminated against the employee, unless they are able to justify the treatment. Indirect, section 15 and direct age discrimination have the same definition of when such discrimination can be justified.
Namely, it is down to employers to persuade a Tribunal that:
- The provision, criterion or practice (PCP) or treatment was in pursuance of, and capable of meeting, a legitimate aim.
Unfortunately, there is no definition of what this means, and it will be for a Tribunal to decide if an employer’s stated aim is indeed legitimate.
- In relation to disability-related sickness absence, case law suggests that ensuring adequate attendance levels and seeking to improve attendance are legitimate aims. However, issuing a warning after 60 days of sickness absence was found not to be a proportionate means of meeting it.
- With regards to direct age discrimination, the Equal Treatment Directive 2000 states that an aim will only be legitimate if it relates to “employment policy, the labour market or vocational training” and not “purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness.”
- When balanced against the discriminatory effect, the PCP or treatment was a proportionate means of meeting that aim.
This part of the justification defence can be very difficult to predict, particularly when dealing with disability-related sickness absence, which often comes down to the question of where an employer can draw the line and issue a warning in respect of disability-related absences.
When considering proportionality, a Tribunal will look at how many people in a protected group are adversely affected by the PCP or treatment (when looking at indirect and direct age discrimination) and how severe that is (also in respect of section 15 discrimination). Where the discriminatory effect is particularly severe, the PCP or treatment is less likely to be proportionate.
A Tribunal will also consider:
- Whether there were less discriminatory ways of achieving the legitimate aim.
- Whether any reasonable adjustments could have been implemented before taking action that could be discriminatory.
If so, it will be difficult for the employer to argue that the steps taken were proportionate.
Speak to the experts
If you would like practical advice on discrimination or any other employee relations matter from a qualified employment law specialist, call 0845 226 8393, ask for the Partnerships Legal Team and quote your ACEVO membership number.
For more guidance on this topic, including relevant case law examples and some simple tips to help avoid claims, watch Ellis Whittam’s free webinar: Employment discrimination is it ever justified?