16 Oct 2020
This is 'objective justification'.
In this article, we’re going to take a look at exactly what it is and when you can use it as a defence.
What is objective justification?
Objective justification gives a defence for applying a policy, rule or practice that would otherwise be unlawful indirect discrimination.
The Equality Act 2010 prevents unfavourable treatment because of a protected characteristic. You cannot discriminate against a protected group or individual. This protection includes agency workers and contractors too.
Some discrimination is indirect. Putting in place a provision, criterion or practice that puts a protected group at a disadvantage does this. For example, enforcing an age restriction when recruiting.
The legal objective justification definition is:
“Any less favourable treatment may be justified on objective grounds. Less favourable treatment will be objectively justified only if it can be shown that the treatment (1) has a legitimate objective, such as a genuine business objective; (2) is necessary to achieve that objective; and (3) is an appropriate way of achieving that objective.”
When is objective justification permitted?
It is permitted when discriminating against you can show it’s a proportionate means of achieving a legitimate aim.
This depends on whether you can show its action was a ‘proportionate means of achieving a legitimate aim.’ Objective justification is a defence of your behaviour or practice.
Could your aim have been achieved by alternative, less discriminatory means? It is your duty to make reasonable adjustments even with objective justification. Does the legitimate aim outweigh the discriminatory effects on the claimant?
The employment tribunal or other court conducts a balancing exercise to decide whether the action by the employer etc was a proportionate means of achieving a legitimate aim. If not, it will be unlawful discrimination.
What’s a legitimate aim?
A legitimate aim is the reason behind the discrimination. This reason must not be discriminatory in itself and it must be a genuine or real reason.
Here are examples of legitimate aims:
- The health, safety and welfare of individuals
- Running an efficient service
- Requirements of a business
- Desire to make a profit.
Objective justification – examples
The concept is easier to understand with examples, so here are a couple to make it clearer:
- Example 1: You are looking to hire a firefighter. In the job advert, one of the requirements is that job applicants must be at least 18 years old. This is to ensure they’re physically mature enough to train for the work required.
- Example 2: You employ a surgeon. They have recently been diagnosed with a medical condition that means they’ll lose their eyesight with no chance of it returning. Due to the requirement for a surgeon to have a certain level of eyesight, you prohibit them from performing operations.
Are these acceptable?
In both of these instances, the action you take as an employer is reasonable and could be considered as serving a legitimate aim. There are several reasons why an action may be reasonable. If it involves keeping the individual, and those who come into contact with them, safe, then you’re most likely acting in a reasonable manner.
Objective justification – age discrimination
This defence often crops up in cases of age discrimination. This is because age is one of the few protected characteristics in which objective justification can be used to defend direct and indirect age discrimination. For everything else, you will only be able to use it in relation to indirect discrimination.
The most common example of discrimination based on age would be when a candidate is refused a job due to being “too old”. More rarely, it could apply to denying an employee a promotion or training opportunities.
If you take our firefighter example from earlier. You could put an age cap on the role, as the applicant requires a significant amount of physical fitness to perform the role In other professions, you wouldn’t have that excuse.
One example is if you’re recruiting a teacher. If the applicant is able and of sound mind, an age cap would be unjustified.
If you’re currently dealing with a case of discrimination, or need support with any other HR query, speak to a Croner expert today on 0145 585 8132 .
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