Indirect discrimination will not be deemed unlawful under the Equality Act 2010 if an organisation/person can show that there was a good enough reason for applying a particular provision, criterion or practice. This is called the objective justification defence.
Indirect discrimination arises where a provision, criterion or practice (PCP) has the effect of putting a person with a protected characteristic at a disadvantage when compared to those who do not share the protected characteristic. On the face of it, the PCP could apply equally and neutrally to everyone but would have the effect of putting a person with a protected characteristic at a disadvantage when compared to those who do not share the protected characteristic.
Some examples of PCPs include:
- A requirement that queries, can only be resolved through telephone conversation
- A requirement that documents are submitted in person and at a specific location
- Mandatory use of voice risk analysis in service provision
- Failing to give extra time to customers who stammer.
However, where an organisation, service provider or public body can justify that the provision, criterion or practice was a proportionate means of achieving a legitimate aim, they will be able to use the objective justification defence. The legitimate reasons could be:
- Business requirements
- Health and safety
- Running an efficient service
- Financial considerations (more likely to be applied to small businesses with lesser financial resources)
- Preventing fraud or abuse
- Fair exercise of powers.
In order to raise this defence, an organisation or service provider must be able to prove that they conducted a balancing exercise, and their aim was necessary and could not be achieved through alternative or less discriminatory means.
We can assist you at every stage of defending a discrimination claim and provide guidance and support on what is the best course of action and potential defence for your organisation under a range of fixed fee and hourly charge options.
For a no obligation, discussion with our specialist discrimination defence solicitors. Call us now on 0161 696 6170.
By Kruti Vyas, graduate paralegal
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