Indirect Discrimination and Objective Justification
Author: Simon Fennell
Applies to: England, Wales and Scotland
Reliance on objective justification to defend allegations of indirect discrimination will always be a balance between risk and reward. Two recent examples show how it can go wrong and in one case, have a negative impact on brand reputation.
Within the European Union, discrimination legislation is governed by the Equal Treatment Framework Directive and is implemented in the UK through the Equality Act 2010. The Equality Act, provides that the characteristics of age, disability, gender reassignment, marriage and civil partnerships, race, religion or belief, sex and sexual orientation are protected from indirect discrimination.
Indirect discrimination occurs when the application of a policy or procedure subjects a group of employees who share a protected characteristic to a disadvantage when compared to their colleagues who do not have the same characteristic. An employer can defend any such policy if it can show that it was objectively justified. For example, a strength requirement applied during a recruitment process may be indirectly discriminatory against women when compared to men as it is likely that proportionately more women would be unable to satisfy the requirement. To avoid liability under the Equality Act the employer would have to show that that there were legitimate reasons for the strength requirement that could not be achieved through less discriminatory means.
Employers will often make decisions that have the potential to be indirectly discriminatory towards one or two individuals and base those decisions in reliance of objective justification. In such cases the risk will be minimal and will be relatively easy to quantify. However, to implement a policy that impacts across the workforce generates risk on a much greater scale and leaves very little room for error.
The test for objective justification can be summarised as 'is there another less discriminatory way to do this?' If there is a positive answer to that question, the employer is likely to face an uphill task to persuade an employment tribunal that the policy was justified. Employers must remember that cost alone is never appropriate justification for a discriminatory policy.
Trouble in Greece
In October 2017 the ECJ ruled that the requirement by the Greek police force that all recruits should satisfy a minimum height requirement of 1.7m amounted to indirect sex discrimination and was not objectively justified. The Court confirmed that while there was a legitimate aim - enabling the effective accomplishment of the various functions of the police force - numerous functions of the police force did not require such physical characteristics. Further, the Court was not satisfied that the physical size of an individual was sufficiently linked to the ability to perform the relevant functions in any event to justify such a policy. The Court was satisfied that women were more likely to be subject to a disadvantage as a result of the policy when compared to men in light of the genetic differences between the genders that on average men are taller than women. The Court identified that the legitimate aim could be achieved through tests during the recruitment process that were designed to assess the physical aptitude of the candidates to deal with the requirements of the role. Consequently there was at least one alternative option available that was less discriminatory than the chosen policy.
A Bumpy landing for Aeroflot
In September 2017 it was reported that two flight attendants for Aeroflot (the Russian national carrier), had successfully appealed a claim brought in 2016 for gender and age discrimination claims after female flight attendants were photographed, measured and, in some cases, weighed before being told that those with a dress size larger than the equivalent of a UK size 16 would no longer work on long-haul international flights. The staff claimed that their bonuses had stopped after they had asked for larger uniforms. Further, when they challenged the reasons, the staff alleged that they had been told in any event they would no longer work on long haul flights because they were 'pretty old'.
Aeroflot denied that it placed geographical restrictions on where its cabin crew could fly, although they did state that heavier staff could pose a safety risk by blocking escape exits. In relation to bonus payments, Aeroflot argued that heavier staff increased the airline's fuel costs by about £10 a year for each excess kilogram they were carrying and argued that this was sufficient objective justification to stop paying heavier women the bonuses. The Russian appeal court overturned the previous decisions and ordered that the carrier stop discriminating on the basis of the body size of its staff.
While Russia is outside of the jurisdiction of the Directive, the concepts involved are very similar to the idea of indirect discrimination in EU law and is a further illustration of the risk of relying on objective justification. In the case of Aeroflot, a business that has worked incredibly hard over recent years to improve its reputation after a number of safety issues, the case has done significant damage to the brand.
If considering imposing a policy that requires objective justification the employer should make note and keep a record of the following requirements:
- What is the legitimate aim it is seeking to pursue?
- What options have been considered?
- Why is the chosen policy reasonably necessary to achieve the legitimate aim?
- How many people are going to be impacted (quantitative assessment)?
- To what extent will those people be subject to a disadvantage (qualitative assessment)?
- Is there a less discriminatory way to achieve the same objective?
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.