Defence to indirect discrimination 




An employer can defeat a claim for indirect discrimination by showing that the PCP is a proportionate means of achieving a legitimate aim. “Legitimate aim” is not defined. Instead, each case depends on its own facts. 


The tribunal’s job is to carefully scrutinise the employer’s aim and the means chosen to achieve it, and to check that there were no less discriminatory ways of achieving the aim. The existence of practical alternatives is an important part of deciding whether a chosen policy was proportionate (Kapenova v Department of Health [2013] UKEAT 0142/13/1404). The tribunal must not simply accept the employer’s view as to whether a measure is proportionate, instead of making this assessment themselves (Seldon v Clark, Wright and Jakes [2012] UKSC 16, Sargent v London Fire and Emergency Planning Authority [2018] UKEAT/0116/17/LA). 


On its own, the need for good industrial relations cannot justify indirect discrimination (Kenny v Ministry of Justice [2012] EUECJ C-427/11). 






A discriminatory policy must go no further than necessary to achieve the aim. Otherwise it will not be capable of justification. The tribunal must conduct a balancing exercise, weighing the interests of those who are disadvantaged against the employer’s need to achieve the aim.




It is legitimate for a business to make its own decisions about allocating resources (HM Land Registry v Benson [2011] UKEAT 0197/11/1002) and to want to safeguard its future financial viability (Braithwaite v HCL BPO Insurance Services Limited [2015] UKEAT/0152/14/DM). However cost alone cannot justify indirect discrimination (Woodcock v Cumbria PCT [2012] EWCA Civ 330). In other words, an employer cannot justify a discriminatory decision, for example, to pay women less than men, just by pointing out that there is less money in the pot (O’Brien v Ministry of Justice [2013] UKSC 6). 


Laws prohibiting indirect discrimination can be a powerful tool for unions in the fight for equality at work. A PCP is more likely to be considered proportionate if it results from consultation with the workforce or negotiation with a trade union (Loxley v BAE Systems (Munitions & Ordinance) Limited [2008] ICR 1348).