Objective Justification (Discrimination Defence?)

As an employer, you are under a duty not to discriminate against someone unlawfully, including both workers and job applicants.

That said, the law recognises that there may be circumstances where an employer has good reason to justify treating someone less favourably, or causing disadvantage to a particular group of people. Known as objective justification, this defence may be available to employers facing certain types of unlawful discrimination claims.

In this guide for employers, we explain what objective justification is and when it may be available as a defence against unlawful discrimination.

 

Section A: What is Objective Justification?

 

Under the Equality Act 2010, it is unlawful to treat someone less favourably than others by reason of a protected characteristic, in other words, to directly discriminate against them. A protected characteristic can include someone’s age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, as well as sex and sexual orientation.

It is also unlawful to indirectly discriminate against a person, or group of people, namely, by applying a provision, criterion or practice (PCP) that is discriminatory in relation to a relevant protected characteristic.

These protections apply not only to employees but to a wide range of individuals, including job applicants, agency workers and contractors, all of whom are protected from suffering discrimination.

However, the 2010 Act goes on to provide, albeit in exceptional circumstances, that if an employer has a good enough reason for the unfavourable treatment complained of, or any disadvantage caused, this may not necessarily constitute unlawful discrimination under the Act.

In particular, where permissible, an employer would not be guilty of unlawful discrimination in the workplace if they can show that their treatment or action is “a proportionate means of achieving a legitimate aim”. When applying this statutory test, this has become known through the courts as objective justification.

 

Section B: Statutory Test for Objective Justification

 

To successfully argue that a potentially discriminatory PCP is objectively justified, an employer must demonstrate that it is a proportionate means of achieving a legitimate aim. This involves a two-fold test:

 

a. Legitimate Aim

A legitimate aim is essentially the reason behind the discrimination, where this reason must be a genuine or real reason that is not in itself discriminatory. As such, the employer must show that the aim behind the PCP was legitimate.

This aim should be a genuine business need or operational requirement, such as ensuring the safety of employees, maintaining operational efficiency, or achieving business growth, with a rational connection between this aim and the less favourable treatment or disadvantage suffered. The aim must not be discriminatory in itself and should align with real business objectives rather than hypothetical or unsubstantiated reasons.

 

b. Proportionality

It is not enough that there is a legitimate aim – the treatment must also be a proportionate and no more than is necessary to accomplish the objective. This means showing that the PCP is appropriate and necessary to achieve the aim and that there are no less discriminatory alternatives available. The impact on the protected group must be balanced against the importance of the aim, ensuring that the benefits of the PCP outweigh the discriminatory effects.

It is important to remember that it is only possible to consider the issue of proportionality once the legitimate aim has been clearly identified, as it is against that specific aim that proportionality falls to be considered.

In the context of discrimination in the workplace, the approach to proportionality requires a balance to be struck between the importance of the employer’s aims and the seriousness of the impact upon the employee, where the detriment caused must not be disproportionate to the aims pursued. In other words, the legitimate aim must outweigh the discriminatory effects.

It also requires an analysis of whether there is any lesser discriminatory measure that might achieve the employer’s aims. As such, in circumstances where proportionate alternative steps could have been taken, the unfavourable treatment or disadvantage caused is unlikely to be justified.

In practice, the employment tribunal will often adopt a broad brush approach, undertaking a balancing exercise between the detriment caused to the employee as against the employers’ reasons for this, and any possible alternative courses of action that could have been adopted to avoid or reduce that detriment.

 

Section C: When is Objective Justification Available?

 

Under the 2010 Act, there are only certain circumstances in which an employer can raise an objective justification defence to excuse discriminatory treatment. These are limited to the following three contexts:

 

a. Direct age discrimination

b. Discrimination arising from a disability

c. Indirect discrimination

 

Further, the defence does not apply to other forms of prohibited conduct, such as harassment or victimisation.

 

1. Objective justification & direct age discrimination

 

Direct discrimination refers to when an individual is treated less favourably than others either because they possess a protected characteristic, or where it is believed that they possess that characteristic (discrimination by perception), or is even associated with someone who possesses that characteristic (discrimination by association). However, when applying a defence of objective justification, direct discrimination can only ever be justified in the context of the complainant’s age, and not in relation to any of the other protected characteristics.

An example of direct age discrimination is where an employer refuses to shortlist a prospective job candidate because they are considered ‘too old’ for the job. It could also include denying an existing employee a training opportunity, or even promotion, because of their age.

 

2. Objective justification & disability discrimination

 

In relation to discrimination arising from a disability, this refers to when someone is treated unfavourably because of something arising in consequence of disability, rather than the disability itself. As such, this is somewhat different to direct disability discrimination.

Examples of things that might be connected to a disability are the need for regular rest or toilet breaks, or the need for specialist equipment or a flexible working pattern. As such, any action that discriminates against an individual in relation to this type of matter is potentially unlawful.

 

3. Objective justification & indirect discrimination

 

Indirect discrimination refers to the application of a policy or rule that subjects a group of individuals who share a protected characteristic to a disadvantage when compared to those who do not possess the same characteristic. Further, when it comes to assessing whether or not any such policy or rule is indirectly discriminatory, it matters not that any disadvantage caused was unintended.

When applying a defence of objective justification, indirect discrimination can only be justified where the disadvantage relates to one of the following protected characteristics, namely, age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, as well as sex and sexual orientation – thereby excluding pregnancy and maternity.

That said, although maternity and pregnancy are excluded from these provisions, it is important to bear in mind that there is nothing to prevent a woman from bringing a claim for indirect discrimination based on her sex.

An example of indirect discrimination by reason of sex could include a policy requiring all employees to undertake full-time hours, where a lot more women have caring responsibilities for young children or dependant adults so they would find it much more difficult than their male counterparts to work full-time.

 

Section D: Examples of Objective Justification in the Workplace

 

The breadth and limitations of objective justification will typically turn on the facts, where each case must be considered on its own individual merits. However, common examples of what can constitute a legitimate aim include:

 

a. The health, safety and welfare of the individual or others, including protection of young people or older workers

b. The wellbeing or dignity of the individual or others

c. The particular training requirements of the job

d. The need to run and provide an efficient service

e. The economic and operational requirements of the business

 

In all cases, a legitimate aim must correspond with a real need of the employer. For example, economic efficiency may constitute a real need, but saving money because it is cheaper to discriminate than not to discriminate is not legitimate.

In particular, the greater financial cost of using a less discriminatory approach cannot, by itself, provide an objective justification. There may even be situations in which the ends, however meritorious, cannot justify the only means that is capable of achieving them.

This doesn’t mean to say that costs can never be factored into the justification process, especially where an employer can show there are other good enough reasons for the treatment. However, an employer solely aiming to reduce costs should not expect to satisfy the test of having a legitimate aim. In other words, cost alone is not sufficient to justify discriminatory treatment.

It is also important to remember that the range of aims that can justify indirect discrimination on any ground is wider than the aims that can, in the case of age discrimination, justify direct discrimination. Typically, as a general principle, direct discrimination can be harder to justify than indirect discrimination.

The test to be applied is also an objective, not a subjective one, whereby the test requires an objective balance to be struck between the discriminatory effect of the measure and the reasonable needs of the employer.

 

Example 1: Objective Justification Established

 

A retail company implements a policy requiring all employees to work one weekend shift per month. This policy might indirectly discriminate against employees with certain religious practices or family commitments. However, the company can establish objective justification by demonstrating that weekend shifts are essential for meeting customer demand and maintaining competitive business operations. The company can also show that it has considered alternative scheduling options and has consulted with employees to minimise the impact while achieving the legitimate aim of providing consistent service to customers.

 

Example 2: Objective Justification Established

 

A manufacturing firm enforces a mandatory health and safety requirement that employees must pass a physical fitness test to work in specific hazardous areas of the factory. This policy could disproportionately affect older workers or those with certain disabilities. However, the firm can justify this requirement by providing evidence that the physical fitness test is necessary to ensure the safety of all employees working in high-risk environments. The firm can further demonstrate that it has explored other safety measures and determined that the fitness test is the most effective way to prevent accidents and injuries, thereby achieving the legitimate aim of maintaining a safe workplace.

 

Example 3: Objective Justification Not Established

 

An advertising agency introduces a new policy requiring all employees to have a university degree, stating that this will ensure a high standard of work. This policy disproportionately affects candidates from lower socioeconomic backgrounds who may not have had the opportunity to attend university. The agency struggles to establish objective justification because the requirement is not strictly necessary for the roles in question. Many successful employees and candidates have demonstrated the necessary skills and creativity through alternative educational paths and work experience. The agency fails to provide a legitimate business aim that cannot be achieved through less discriminatory means, such as assessing individual skills and experience directly. Thus, the policy cannot be objectively justified and may be deemed discriminatory.

 

 

Section E: Failing to Establish Objective Justification

 

As a matter of law, the legal burden rests with the employer to show that the unfavourable treatment or any disadvantage caused was objectively justified.

As such, where the employer has been unable to adduce sufficient evidence and explanation to persuade a tribunal that the “means justified the end”, a finding will be made of unlawful discrimination.

UK courts and employment tribunals scrutinise objective justification claims rigorously. Employers need to provide clear evidence supporting their justification, including the rationale behind the policy, the consideration of alternatives, and the consultation process with affected employees or their representatives. Employers are also encouraged to conduct equality impact assessments to evaluate the effects of their policies on different groups and to document their findings comprehensively.

Failure to establish objective justification can result in legal consequences for employers, including findings of unlawful discrimination and potential compensation claims from affected employees. Therefore, it is essential for employers to carefully consider the necessity and impact of their policies and to seek legal advice when in doubt.

Where a case of unlawful discrimination succeeds, an employment tribunal can order compensation, make a recommendation and/or make a declaration as to the rights of the parties. An award of compensation will reflect not only any loss of earnings, but can also represent what’s known as ‘injury to feelings’.

In the context of discrimination, there is no statutory limit on the amount of compensation that can be awarded. In other words, compensation following a successful claim for unlawful discrimination is unlimited.

Further, compensation may be awarded in addition to the two other remedies available, namely a declaration or recommendation(s). A declaration is simply a statement to the effect that the discrimination took place. For the employee, this can be important as a matter of principle. A tribunal may also make one or more recommendations to the employer designed to remove or reduce the adverse effects on the complainant, for example, considering the employee for the next promoted post or arranging equality training for the employee’s line manager.

 

Section F: Best Practice for Employers

 

Many cases of unlawful discrimination within the workplace arise in circumstances where an employer has introduced a new policy or rule that has inadvertently had a discriminatory effect on a particular individual, or group of individuals, possessing a relevant protected characteristic.

That said, even where the discrimination is not deliberate, a finding of unlawful discrimination may still result. As such, when imposing a new policy that requires an objective justification, the employer should always undertake some form of quantitative and qualitative assessment as to the extent of any potential discriminatory effect.

This should include asking the following questions:

 

a. What is the legitimate aim being sought?

b. What alternative options have been considered?

c. Why is the chosen policy or rule reasonably necessary to achieve the legitimate aim?

d. How many employees/workers are going to be impacted?

e. To what extent will those individuals be subject to a disadvantage?

f. Is there a less discriminatory way to achieve the same objective?

 

The employer should also keep records of each of the requirements set out above, together with all documented evidence, in support of their reasons for any steps taken.

In the event of any uncertainty, expert legal advice should be sought from an employment law specialist prior to implementing a new policy or rule. In this way, employers can help to protect themselves from any claim for unlawful discrimination and, more importantly, make an informed decision before acting in a potentially discriminatory way.

 

Section G: Need Assistance?

 

Our employment lawyers can help with all aspects of discrimination and equality in the workplace. Working closely with our specialists in HR, we provide comprehensive guidance on avoiding and defending discrimination claims, such as through the use of defences such as objective justification. For help and advice, speak to our experts.

 

Section H: Objective Justification FAQs

 

What is an objective justification?

Objective justification is a defence against unlawful discrimination potentially available to employers in certain circumstances. When a policy or practice indirectly discriminates against a protected group, the employer can defend the practice if they can prove it is objectively justified. This means the policy must serve a legitimate business aim and be necessary and appropriate to achieving that aim.

 

What is justified discrimination?

Employers may be able to rely on a defence of objective justification if they can show the discriminatory treatment was a proportionate means of achieving a legitimate aim.

 

What is objective justification in employment law?

Objective justification refers to a legitimate reason an employer might have for implementing a policy or practice that has a disproportionate adverse effect on a particular group of employees who share a protected characteristic. To be considered objectively justified, the policy must be a proportionate means of achieving a legitimate aim.

 

What constitutes a legitimate aim for objective justification?

A legitimate aim in the context of objective justification usually relates to a genuine business need, such as ensuring the efficient operation of the business, maintaining health and safety standards, or
meeting specific customer service requirements. The aim must be real, non-discriminatory, and not based on assumptions or stereotypes.

 

How can an employer demonstrate that a policy is proportionate?

To demonstrate that a policy is proportionate, an employer must show that the means of achieving the legitimate aim are appropriate and necessary. This involves balancing the business needs against the discriminatory impact on the affected group. The employer should consider whether there are less discriminatory alternatives that could achieve the same aim.

 

Can you give an example of objective justification?

An example of objective justification might be a company requiring all employees to work night shifts, which could disproportionately affect older workers or those with certain health conditions. If the employer can demonstrate that night shifts are essential for business operations and there is no viable alternative, this requirement might be considered objectively justified.

 

What happens if an employer fails to provide objective justification?

If an employer fails to provide objective justification for a policy that indirectly discriminates against a protected group, they may face legal consequences, including discrimination claims. Employees affected by the unjustified policy may be entitled to remedies such as compensation or changes to the discriminatory practice.

 

Is it possible to challenge an employer’s claim of objective justification?

Employees can challenge an employer’s claim of objective justification by providing evidence that the policy is not proportionate or that the aim could be achieved through less discriminatory means. Employment tribunals will assess whether the justification provided is genuine and reasonable.

 

How can employers prepare to defend a policy on the grounds of objective justification?

Employers can prepare to defend a policy on the grounds of objective justification by thoroughly documenting the legitimate aim behind the policy and the decision-making process. They should conduct an impact assessment to evaluate the policy’s effects on protected groups and explore potential alternatives. Consulting with affected employees and seeking legal advice can also strengthen their position.

 

What role does proportionality play in objective justification?

Proportionality is a key component of objective justification. It requires employers to show that their policy is appropriate and necessary to achieve the legitimate aim and that the benefits of the policy outweigh the discriminatory impact. Proportionality ensures that the policy is balanced and fair.

 

Where can employers get more information about objective justification in employment law?

Employers can obtain more information about objective justification from official resources such as the UK Government’s website or by consulting legal professionals who specialise in employment law. Advisory organisations like Acas and the Equality and Human Rights Commission also provide guidance and support on this topic.