Whether a court or employment tribunal is able to conclude that unlawful discrimination has taken place, will in respect of some heads of claim, often depend on whether the organisation, service provider or employer is able to establish that their actions were a ‘proportionate means of achieving a legitimate aim’. The Equality Act 2010 provides for exceptional circumstances where unfavourable treatment, or any disadvantage caused to a claimant may not necessarily equate to unlawful discrimination.
This defence is available to the aforementioned circumstances in the instance of direct age discrimination, (Section 13(2) of the Equality Act 2010), where a claim for indirect discrimination is raised, (Section 19(2)(d) of the Equality Act 2010), and a discrimination claim arising from a disability, (Section 15(1)(b)).
The two elements of proving an objective justification defence, comprise of a ‘legitimate aim’ and ‘proportionality’.
A legitimate aim should be a genuine business need or requirement to allow the organisation to operate functionally, which may include the health and safety of staff or employees, maintaining a level of operational efficiency, ensuring business growth, with a reasonable connection between the disadvantage an individual or group of people may be placed to, and the aim in question.
If the above is satisfied, a defendant will also need to demonstrate that the treatment was proportionate, and went beyond no means in order to accomplish the aim which is being relied upon. This may include demonstrating that there were no less discriminatory provision, criteria or practices which could have been put in place, and that the same was appropriate in the circumstances. Therefore, the detrimental impact that this may have upon a protected group, would need to be finely balanced against the legitimate business aim.
Direct age discrimination
Section 13:
(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.
The only form of direct discrimination that can be objectively justified using the legitimate aim defence, is that for the protected characteristic of Age.
Examples of a legitimate aim which may be used as a defence in proceedings of this nature include:
- Rewarding experience;
- Promoting access to employment for younger ages;
- Facilitating the implementation of older workers in the workforce; and
- Providing for a mix of generations within a workforce, to promote the exchange of ideas and experience.
Indirect discrimination
Section 19 (2):
This claim provides that it is unlawful to indirectly discriminate against a group of people/ an individual, namely, by applying a provision, criterion or practice (PCP) that is discriminatory in relation to a protected characteristic. However, a defence of objective justification is available if the indirect discrimination can be justified where the disadvantage relates to any of the protected characteristics except pregnancy and maternity.
Disability discrimination
Section 15
In relation to discrimination arising from a disability, a claim under this section refers to when an individual is treated less favourably due to something which arises in consequence of their disability, rather than the disability itself.
Examples of things which may arise in consequence of a disability are;
- the need for regular rest or toilet breaks;
- the need for specialist equipment;
- the need for adapted access;
- the requirement for additional training or assistance, or;
- flexible working patterns.
It was confirmed in the employment tribunal case, (Department for Work and Pensions v Mrs Susan Boyers: [2022] EAT 76), that it is the outcome rather than the employer’s process or procedure that needs to be justified. This case confirmed that by way of a reminder to employers and by virtue all organisations, a holistic approach must be taken in exploring alternative options before determining an outcome, rather than just merely appearing to go through the motions before determining an outcome.
If an individual believes that they have been treated unfavourably and unlawfully discriminated against by your business/organisation or an employee who works for your business or organisation, they may take action against you. As an organisation/business you must act quickly if you receive a complaint of discrimination, or a formal letter before action. Please read the below for further details on dealing with complaints of discrimination as a service provider.
- What happens if a business fails to engage with a complaint of discrimination against them?
- Defending claims of indirect discrimination - the objective justification defence
- How can service providers defend discrimination claims?
It is advisable that businesses provide training to their employees on their obligations under the Equality Act 2010, especially those in relation to treating all service users equally, regardless of whether they have a disability.
If your business is accused of discrimination, our team can help you. Alternatively, if you believe that an education provider has failed to provide you with the adequate level of assistance which you require, and you wish to discuss your position, for a no obligation discussion with our specialist discrimination defence solicitors, call us on 0161 696 6170.
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