In the United Kingdom, the Equality Act 2010 makes all forms of discrimination in the workplace unlawful. Indirect discrimination, however, if justified as being ‘a proportionate means of achieving a legitimate aim’, and is not considered unlawful by employment law in the UK.
Also, the interpretation of justification is important, in order to determine the extent of protection for employees from indirect discrimination in the UK.
Nonetheless, employment tribunals apply the principle of proportionality to assess the merits of justification and to strike a balance between the interests of the employer and the employee. Proportionality assessment can also help increase protection for claimants and ensure that there is sufficient evidence against the discriminatory action.
This article will compare the interpretation of the justification and the importance of proportionality assessment, as given by the domestic courts against those of the Court of Justice of the European Union.
Proportionality and employment discrimination
The evidence suggests that claimants in the UK are often at a disadvantage; however, a proportionality assessment can help provide more effective protection for them. Furthermore, a robust proportionality assessment can even deliver increased protection to an employee, since a significantly discriminatory impact does outweigh even reasonable cause.
There are precedents in which the tribunal has given less importance to the discriminatory impact in its fullest sense. For example, in Barry v Midland Bank, the discriminatory impact of a voluntary severance scheme was not fully examined by the tribunal, because the claimant was working as a part-time worker. Furthermore, the tribunal did not give consideration to the justification issue.
Therefore, if employment tribunals continue to have a choice of approaches when it comes to proportionality, this can only serve to aggravate the problem for the claimants, who’ve been treated unfairly in their workplace.
Overall, in most cases relating to disability discrimination and racial discrimination, the tribunals consider investigating the needs of employers, more than assessing the discriminatory impact of the action in its fullest sense. This imbalance can be seen in Pill LJ’s comments in Hardy & Hanson plc v Lax 20, where he commented that a ‘broader understanding of the needs of the business will be required’ in cases relating to justification.
Here, Pill LJ did not add that employment tribunals also had a proactive duty to consider the discriminatory impact fully within the proportionality assessment. Therefore, it is not surprising that the tribunals and EAT appear to give scant consideration to this aspect of the proportionality assessment.
Proportionality and unequal treatment
The principle of proportionality can play an important role in justifying unequal treatment across a variety of employment settings. Outside the scope of application of non-discrimination law, public authorities and employers, are under an obligation not to differentiate arbitrarily between employees.
This principle only demands that differential treatment should not be arbitrary and that it must pursue a legitimate aim. This threshold is not very high since any different treatment can be justified, as long as it helps achieve a legitimate aim. On the other hand, employment discrimination needs a stricter application of the proportionality principle. This happens because the discriminatory conduct including disability discrimination and maternal discrimination is prohibited.
Here, proportionality can be helpful in establishing causation. Therefore, in direct discrimination cases, proportionality can be used to determine whether the more favourable treatment of a colleague of the claimant is caused by discrimination. Alternatively, in indirect discrimination cases, the principle of proportionality is always relevant.
Proportionality enters into the fray again, when there is a causal relationship between unequal treatment and the discrimination ground. As the positive EU secondary law only allows employers to justify explicit differentiation in certain cases, the principle of proportionality again becomes relevant.
Last few words
According to leading no win no fee employment lawyers, evidence suggests that claimants in the UK often lose out in cases of discrimination. This is due to two factors: the inadequate emphasis given to the discriminatory impact within the proportionality assessment and the failure of the employment tribunals to apply a strict test of necessity.
Nonetheless, in cases where the tribunals adopt a robust application of proportionality, the claimants receive an almost equivalent number of benefits as those in a strict test of necessity. Further, it gives the tribunals greater flexibility in cases where a strict test of necessity may produce a result, which is completely opposite to the intentions of anti-discrimination legislation.
Therefore, tribunals need to have a robust approach to proportionality, which will help them consider information regarding discriminatory impact better. Subsequently, they will be able to make an informed decision after fully assessing the discriminatory effects.
Also, this approach requires further evidence, which in turn, will help make the decision-making process more transparent, even in cases where the tribunal has discretion. To know more about proportionality and employment rights, you can contact an experienced employment solicitor.