Is there a defence to a claim for indirect discrimination?

Yes. A claim for indirect discrimination can be defeated if the employer can prove that the provision, criterion or practice (PCP) is a proportionate means of achieving a legitimate aim. There is no definition of “legitimate aim” in the EA 10, because each case depends on its own facts. However, a tribunal will expect an employer to be able to produce good persuasive evidence not only that the aim is legitimate, but also that it is a proportionate (i.e. appropriate) way of responding to the problem.

A tribunal will usually expect to see what other options were considered, and why they were discarded, and will expect the policy to go no further than necessary to achieve the aim. 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). The tribunal must conduct a balancing exercise, weighing the interests of those who are disadvantaged against the employer’s need to achieve the aim.

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

Cost alone cannot justify indirect discrimination (Woodcock v Cumbria PCT [2012] EWCA Civ 330). An employer is not allowed to justify a discriminatory decision, for example to pay women less than men, just by pointing to the fact that there is less money available. If an employer has limited resources, the law does not allow it to allocate those resources in a way that discriminates against protected groups. For example, in O’Brien v Ministry of Justice [2013] UKSC 6, denying part-time recorder judges a pension just because this would leave less money available to fund the pensions of full-time circuit judges was unlawful.

Often, complicated statistical evidence is needed to succeed in a claim for indirect discrimination. This kind of case is very expensive and is usually pursued in order to establish a point of wider importance, beyond that of the individual litigant.