Discrimination can either be direct or indirect. Direct discrimination in the context of sex is, for example, where a person is not employed because she is a woman. Indirect discrimination is where an apparently neutral provision, criteria or practice is applied that disadvantages one group over another.
Although there is no defence of ‘objective justification’ available in direct discrimination cases, it is available for indirect discrimination claims if it is a proportionate means of achieving a legitimate aim.
An example of indirect discrimination is making an employment decision based on the performance of candidates at an outward-bound weekend. This would disadvantage those with physical disabilities who could not take part. There would be much more proportionate ways of selecting the right candidates – for instance interviews and assessment centres – where reasonable adjustments could be made for those with disabilities, and therefore it is unlikely an employer could objectively justify this decision.
This gets more subtle in cases such as requiring a woman to come back to work full time after she has had a baby. Setting aside the flexible-working request regime, such a requirement to return full time disadvantages women because the law still acknowledges they have the majority of childcare responsibilities. Therefore, when saying no to a flexible working request from a woman returning from maternity leave, a business needs to consider the woman’s ability to bring an indirect discrimination claim. Employers need to consider their reasons, and whether the requirements are proportionate, as well as whether they can justify saying no. This is why trialling a part-time working request is often the best solution, as it stops any stereotypical assumptions being made.
In the recent Greek case of Ypourgos Ethnikis Pedias kai Thriskevmaton v Kalliri, the Court of Justice of the European Union (CJEU) had to consider whether it was indirectly discriminatory to require men and women to be at least 1.70m tall – and if it was, whether this could be objectively justified, which, under the Equal Treatment Directive, means ‘objective and necessary’.
The CJEU had held in previous cases that ensuring the operational capacity and proper functioning of the police services constituted a legitimate objective. That means the question was whether the height requirement was objective and necessary.
While every application to join the police was treated equally, irrespective of sex, the question was whether this height requirement disadvantaged women. The statistics showed that by imposing the restriction, this disproportionately affected women as they are shorter on average.
The Greek government argued that the objective it was trying to achieve was to ensure police officers had the necessary physical capability for the job (which the CJEU accepted) and that imposing this height restriction was appropriate or necessary to achieve this. However, the CJEU could find no correlation between height and physical strength, and noted that until 2003 there had been different heights – 1.65m for women and 1.70m for men.
The CJEU said there were other ways of ensuring officers had the necessary physical capability, such as strength and physical fitness tests, and, because of this, the 1.70m requirement was not justified and was therefore indirectly discriminatory.
While cases decided by the CJEU that interpret EU law will be binding on the UK until it leaves the EU, this was a fact-sensitive case that turned on whether the requirement was appropriate or necessary. Ultimately, the CJEU concluded it was not. While the definition of objective justification in the Equal Framework Directive is slightly different to the Equality Act 2010 in the UK, the sentiment is the same – is there a better way of doing this that balances the needs of the employer with those of the employee?
HR professionals should always give careful consideration to any apparently neutral requirements that are imposed on applicants and think: will this disadvantage any group in particular and, if it does, can this be objectively justified?
Beverley Sunderland is managing director of Crossland Employment Solicitors