Direct discrimination occurs when an employer or service provider treats a person with a protected characteristic (for example, based on their sex, gender, or age) less favourably because of their protected characteristic. Importantly, direct discrimination cannot be justified by an employer or service provider, except in cases of age discrimination where the decision may be justified provided it is a proportionate means of achieving a legitimate aim.
Indirect discrimination happens when an employer or service provider has a rule, policy or practice (Condition) which applies to everyone but puts people with a protected characteristic at a disadvantage (including the affected complainant) when compared with those who do not have that protected characteristic. As Conditions are not inherently discriminatory (or they may cause direct discrimination) indirect discrimination can be justified provided the employer or service provider can show the Condition is a proportionate means of achieving a legitimate aim.
What does a proportionate means of achieving a legitimate aim mean?
The Employment Appeal Tribunal (EAT) looked at this question in The Ministry of Defence v Koren Brown.
Koren Brown tried several times to pass a fitness test, which required all applicants for a policing role to have a specified minimum level of fitness (Standard). She was always unsuccessful and as a result her employment was, therefore, terminated.
The Employment Tribunal (ET), before the EAT, had decided the Standard was indirectly discriminatory against women (including Koren Brown) because women found it harder to meet it. The ET also decided the Standard was a proportionate means of achieving a legitimate aim, but that Koren Brown had not been treated in a proportionate way because an alternative means to meet the Standard was not offered to her.
The EAT was settled that the Ministry of Defence had implemented this rule for health and safety reasons and was comfortable with that logic.
However, the EAT was less settled with the ET’s reasoning on the point of how Koren Brown had been treated and whether in fact there were alternative means of showing the required fitness standard that would (or could) have caused a less discriminatory outcome. There was mention of alterative fitness tests, but uncertainty on whether the Standard could be met in another way.
The EAT highlighted that “it was for the MDP to prove that the means it had adopted was both reasonably necessary and proportionate”, which emphasises that this potential defence relies on the employer or service provider having a legitimate purpose for the rule and considering whether the outcome could be achieved in a less discriminatory way.
This blog was written by Ben Lindsay, Solicitor at didlaw.
