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 genuine and legitimate aim. “Legitimate aim” is not defined. Instead, each case depends on its own facts. 



The tribunal’s job is to carefully scrutinise both 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 tribunal must carry out this scrutinising role even if the employer is the state , for example, a government department. The test is objective. In other words, it is based on the tribunal’s own assessment, not the employer’s subjective opinion (Hardys and Hansons plc v Lax [2005] EWCA Civ 846). The tribunal conducts a balancing exercise, weighing the interests of those who are disadvantaged against the employer’s need to achieve the aim. The more severe the negative impact on the disadvantaged group, the harder it will be for the employer to justify the policy. The existence of practical alternatives is important when deciding whether a chosen policy was proportionate (Kapenova v Department of Health [2013] UKEAT 0142/13/1404). A discriminatory policy must go no further than necessary to achieve the aim. 





An employer’s desire to make more money cannot be a justification on its own for discrimination (O’Brien v Ministry of Justice [2013] UKSC 6). However, the line is not always clear. It is legitimate for a business to make its own decisions about allocating resources, as long as these are proportionate and evidence-based (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). 


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


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