The issue of justification of discrimination is rarely a simple matter. No margin of appreciation was to be allowed to an employer. It is for the tribunal to make its own judgment as to whether the practice complained of by the employee was reasonably justified. There is no’ range of reasonable response’ test in this context. The more serious the disparate adverse impact, the more cogent must be for the justification for it.
Pill LJ: ‘It must be objectively justified (Barry) and I accept that the word necessary used in Bilka is to be qualified by the word reasonably. That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word reasonably reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellant’s submission (apparently accepted by the EAT) that, when reaching its conclusion the employment tribunal needs to consider only whether or not it is satisfied that the employer’s views are within the range of views reasonable in the particular circumstances.’
Mr Justice Gage Lord Justice Pill Lord Justice Thomas
[2005] EWCA Civ 846, Times 26-Jul-2005, [2005] IRLR 668, [2005] ICR 156
Bailii
Sex Discrimination Act 1975 1(2)(b)
England and Wales
Citing:
Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
Cited by:
Cited – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
Cited – Azmi v Kirklees Metropolitan Borough Council EAT 30-Mar-2007
The claimant alleged discrimination. As a teaching assistant, she had been refused permission to wear a veil when assisting a male teacher.
Held: Direct discrimination had not been shown. The respondent had shown that any comparator would have . .
Cited – Rolls Royce Plc v Unite the Union QBD 17-Oct-2008
The company had entered into collective agreements with the union governing criteria and procedures for redundancy selection. The company said that the criteria were not compliant with the age discrimination regulations.
Held: The union was . .
See Also – Hardy and Hansons Plc v Lax EAT 28-Nov-2005
EAT Sex Discrimination: Injury to Feelings and Other Losses
In the light of the finding at the liability hearing, upheld by the CA, that the Claimant should have been offered the opportunity to take the new . .
Cited – Homer v Chief Constable of West Yorkshire Police SC 25-Apr-2012
The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring. . .
Cited – Secretary of State for Justice v Prospere EAT 30-Apr-2015
EAT Disability Discrimination: Reasonable Adjustments – Section 15
The Employment Tribunal erred in failing to decide the disability discrimination and reasonable adjustments claims on the basis of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.228281