![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201012.jpg)
6. Employers’ defences to discrimination claims
As is clear throughout this booklet there are circumstances where an employer can escape liability for discriminatory treatment. There are three main grounds:
• where the discriminatory (less favourable treatment) is proportionate and aimed at achieving a legitimate aim;
• where the less favourable treatment is to do with a genuine occupational qualification or requirement; or
• in disability discrimination claims, where the employer has made adjustments and there is nothing more that reasonably can be done.
Proportionate means
The primary defence open to an employer is where it is accepted that the worker has experienced less favourable treatment, but where this was necessary to achieve a legitimate aim.
The first thing to note is that an employer can never justify direct discrimination, other than on the grounds of age. The law does not permit employers to treat someone less favourably purely because of who they are, so long as they fall within one of the groups protected by discrimination law.
The issue of whether or not an employer can defend the imposition of a “provision, criterion or practice” the outcome of which is to treat some workers less favourably, is only relevant to indirect discrimination claims (see Chapter 2).
Circumstances where the courts have accepted an employer’s reasons for less favourable treatment include turning down a woman’s request to work part-time because the job she was doing could only effectively be done full-time.
Service-related pay scales are another area where the different working patterns of men and women can potentially affect entitlement. In the long-running case of Cadman v HSE C-17/05, the ECJ held that, as a general rule, length of service is enough to objectively justify a difference in pay as long service goes “hand in hand” with experience, which generally enables a worker to perform his or her duties better. However, the ECJ did recognise that there were cases in which this general rule would not apply. It said this would be where the worker provides evidence giving rise to “serious doubts” that length of service goes hand-in-hand with experience and/or that experience enables the worker to perform his or her duties better.
In Wilson v Health and Safety Executive and EHRC (intervener) [2009] EWCA Civ 1074; [2010] IRLR 59 the employee challenged the lawfulness of a pay scale which, by a series of fixed pay increases, rewarded employees for having up to 10 years’ service. The tribunal agreed that a pay scale based on a 10-year-period was not justified, and that a five-year period would have been appropriate. On appeal, the Court of Appeal said the effect of the earlier decision in Cadman is that an employer can be required to provide objective justification for its use of a length of service criterion (as well as its adoption in the first place). The “serious doubts” test (see the Cadman decision above) is not an additional hurdle for the claimant to cross. It is a low test and simply operates as a preliminary filter to see whether the claimant is likely to be able to prove that in a particular case objective justification may be required. The tribunal’s decision was correct.
Wilson v Health and Safety Executive and EHRC (intervener) [2009] EWCA Civ 1074; [2010] IRLR 59
Genuine occupational requirements
Under Part 1, Schedule 9 Equality Act 2010 (EA 10), employers can justify discrimination where there is a genuine occupational requirement (GOR) for the job. This affects people with any protected characteristic alleging direct and/or indirect discrimination. It cannot, however, be used as a defence in harassment and/or victimisation claims.
An example of a GOR reason might be where, for authenticity, a theatre wants to hire a man for a male role or wants a black actor to perform a black role. However, the GOR exemption is always narrowly defined. In the case of Etam v Rowan [1989] IRLR 150, the EAT did not accept that it was necessary to employ a woman in a clothes shop just because a small part of the duties involved entering the changing rooms.