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 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). 



In general, tribunals are not supposed to "second-guess" an employer's commercial justification for their policy, or to rule that a policy cannot be justified because another less discriminatory option was available (Chief Constable of Midlands Police v Harrod [2017] EWCA Civ 191). Even so, the existence of feasible alternatives is an important part of deciding whether a chosen policy was proportionate (Kapenova v Department of Health [2013] UKEAT 0142/13/1404).



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 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 in the pot. 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.



In a claim for indirect sex discrimination following the refusal of a request for flexible working made by a female train driver, the EAT ruled that the need to balance the work-life needs of the rest of the workforce and to run an effective train service were both legitimate aims capable of providing a defence to the claim (XC Trains Limited v (1) CD and (2) ASLEF and others [2016] UKEAT/0331/15/LLA).