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When discrimination can be considered acceptable

Published 13 August 2018

Can you ever justify discriminatory behaviour in the workplace? The answer, which may surprise some, is yes.

We are all, or at least should be by now, aware of the pitfalls and cost of an employee being subjected to any type of discrimination at work.

The reported case of a London council manager awarded £1m after suffering age discrimination is a startling reminder of the high price that can be paid when discrimination is proven (1).

So, the idea that an employer can actually act in a way that is considered discriminatory, and it be found to be right and justifiable, needs a bit more explanation.

Employers can discriminate against an individual, but only if there is a permissible reason for doing so. If this is the case, it will not count as unlawful discrimination under the Equality Act 2010.

If challenged, however, the employer would need to be able to demonstrate to a court that such behaviour was necessary, which in legal terms is known as ‘objective justification’(2).

In order to use an objective justification defence, an employer will need to show that a particular policy or age-based rule was for a good reason, and it is a fair means of achieving a legitimate aim.

The Equality and Human Rights Commission does state (3): To prove objective justification:

  • The aim must be a real, objective consideration, and not in itself discriminatory (for example, ensuring the health and safety of others would be a legitimate aim)
  • If the aim is simply to reduce costs because it is cheaper to discriminate, this will not be legitimate.
  • Working out whether the means is ‘proportionate’ is a balancing exercise: does the importance of the aim outweigh any discriminatory effects of the unfavourable treatment?
  • There must be no alternative measures available that would meet the aim without too much difficulty and would avoid such a discriminatory effect: if proportionate alternative steps could have been taken, there is unlikely to be a good reason for the policy or age-based rule.

There are a limited number of situations in which discrimination can be justified. This includes indirect discrimination; discrimination because of something connected to your disability, this is called discrimination arising from a disability; and direct age discrimination.

If a NHS trust was seeking to recruit a particular medical specialist, for example a neurosurgeon, it may advertise the vacancy for an individual with at least 10 years’ experience.

This may be considered justifiable as it can be asserted that without that level of experience the applicant cannot do the job properly. Although this may be thought of as indirect discrimination, as it may exclude new mothers who have taken time off work to care for their newborn, it can be considered acceptable.

There can be a tendency to confuse lawful discrimination with positive action, the two are different.

Under the Equality Act it is permissible for employers, in some circumstances, to actively seek to help what can be considered disadvantaged groups to access opportunities or training (4). This is known as positive action.

The BBC has previously faced criticism for aiming to recruit specific groups said to be underrepresented in the organisation.  The broadcaster defended its position by insisting the move was necessary to help those people gain the skills and experience they need to fairly compete for jobs in the industry (5).

A former BBC radio presenter was scathing about the Corporation’s diversity strategy when he claimed he was dismissed because he was white man (6).

Employers can take positive action to help people with a particular protected characteristic where they are disadvantaged in relation to work, low numbers are employed or in training or have specific needs to those who do not share the same protected characteristic.

It is worth adding that it is unlawful discrimination under the Equality Act if an employee is treated differently based on one of the nine protected characteristics of: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation (7).

References

1.Sacked council manager wins £1 million age discrimination payout. 2009 Sep 10 [cited 2018 Aug 11]; Available from: https://www.telegraph.co.uk/news/uknews/6169966/Sacked-council-manager-wins-1-million-age-discrimination-payout.html

2.Objective justification Meaning in the Cambridge English Dictionary [Internet]. [cited 2018 Aug 11]. Available from: https://dictionary.cambridge.org/dictionary/english/objective-justification

3.Words and terms used in the Equality Act | Equality and Human Rights Commission [Internet]. [cited 2018 Aug 11]. Available from: https://www.equalityhumanrights.com/en/advice-and-guidance/commonly-used-terms-equal-rights#objective

4.Positive action – your opportunity to advance equality | Equality and Human Rights Commission [Internet]. [cited 2018 Aug 12]. Available from: https://www.equalityhumanrights.com/en/legal-work-scotland/legal-work-scotland/scottish-legal-articles/positive-action-%E2%80%93-your-opportunity

5.We are taking the right approach to diversity [Internet]. About the BBC. 2016 [cited 2018 Aug 12]. Available from: http://www.bbc.co.uk/blogs/aboutthebbc/entries/ace65c0a-ce7e-415c-b425-d5c233ff7548

6.Siddique H. BBC presenter Jon Holmes claims he was sacked for being a white man. The Guardian [Internet]. 2016 Oct 2 [cited 2018 Aug 12]; Available from: https://www.theguardian.com/media/2016/oct/02/bbc-presenter-jon-holmes-the-now-show-sacked

7.Discrimination: your rights [Internet]. GOV.UK. [cited 2018 Aug 12]. Available from: https://www.gov.uk/discrimination-your-rights

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A reputation built on success

For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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