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 and reasonable) 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).

It is not the law that a policy can never be justified if a less discriminatory alternative was available. However, the availability of other less discriminatory options is important when deciding whether the chosen policy was proportionate (Kapenova v Department of Health [2013] UKEAT 0142/13/1404).

It is a legitimate aim for a business to make 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 is not allowed to justify a discriminatory decision, for example, a decision to pay women less than men, merely by demonstrating that there is less money available. The law does not allow an employer whose resources are limited to allocate those resources in a way that discriminates against protected groups. For example, in O’Brien v Ministry of Justice [2013] UKSC 6, the MOJ’s decision to deny part-time recorder judges a pension because this would leave less money 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.