Key cases on indirect discrimination

Question 1

What are examples of protected characteristics?

Answer 1

Age, race, sex, gender identity, disability, religion/belief, pregnancy and maternity, marriage/civil partnership

Question 2

Allen v Flood (1898)

Answer 2

Makes some distinction between what is unfair and what is unlawful under discrimination law. Statute moved forwards after this case because the law was not doing enough.

“refusing to employ a worker may be for the most mistaken, capricious, malicious or morally reprehensible motives… but it does not mean he has a right of action against him”.

Question 3

R (on the application of E) v Governing Body of JFS per Lady Hale (2009)

Answer 3

People cannot be treated differently and the same simultaneously. it is either one or the other.

“There must be no less favourable treatment between otherwise similarly situated (or qualified) people on the grounds of a protected characteristic”

Question 4

Homer v CC of WYP per Lady Hale (2012)

Answer 4

Indirect discrimination laws are used to “level the playing field” that place people at a “comparative disadvantage” compared to others.

Question 5

Price v Civil Service Commission (1978)

Answer 5

35 year old female applied for a position as an executive office grade. Age discrimination did not exist and the age range was 17 to 28. She pursues a claim on the grounds of sex.

Held: she is both directly disadvantaged and individually disadvantaged because of her age. Smaller proportions of women look for work in this field due to childcare commitments. It was not justified by the employer because there was no evidence that aims could not have been achieved with an older workforce.

Question 6

London Underground v Edwards (no 2) (1999)

Answer 6

New shift system for tube drivers. One worker could not comply because of childcare issues. Out of the drivers, 100% of males could comply but only 95% of women could.

Held: This was a high enough degree of disadvantage to constitute discrimination against women.

Question 7

Hampson v Dept of Education and Science per Balcombe LJ (1989)

Answer 7

“Justifiable” requires an objective balance between the discriminatory effects of the condition and the reasonable needs of the party who applies the condition”

Question 8

Hardy & Hansons plc v LAX (2005)

Answer 8

Proportionality means the employer must consider the “reasonable needs” of the business. they must consider if the employers views, when making a decision, fall within a reasonable set of circumstances.

Question 9

R v (Elias) v Sec of State for Defence (2006)

Answer 9

Mummery LJ: the objective of the measure in question must correspond to a real need.

Question 10

Seldon v Clarkson Wright and Jakes (2012)

Answer 10

It is best if “the employer justifies their reasoning in advance”

Question 11

British Airways v Grundy (no 2) (2008)

Answer 11

Justification has three folds:

1. impact of discrimination was “relatively minor”
2. differences in treatment between full time and part time workers was the result of a collective agreement with the union.
3. legitimate business aim to “reward the greater contractual commitment of full time staff” e.g. full time staff being more dedicated to the job than part time and putting in more hours.

Question 12

Cross v British Airways (2005)

Answer 12

EAT: Burton J: an employer seeking to justify discrimination cannot rely solely on cost considerations. He puts cost into other considerations to seek a balance.

Question 13

What is the role of cost as a legitimate aim?

Answer 13

It does not have much relevant by itself, and some considerations are not logical where it is cheaper to discriminate than it is not.

Question 14

HM Land Registry v Benson (2012) EAT

Answer 14

It was irrelevant whether HMLR could afford to allocate a larger amount to the redundancy/retirement process.

The use of a selection criteria to recruit staff was a justified and proportionate means of achieving a legitimate aim and therefore there was no discrimination here. They dismissed the claims of Mrs Benson and her colleagues.

Question 15

Pulham and others v London Borough of Barking and Dagenham (2010)

Answer 15

15 employees brought an action against their employer. The employees were able to receive some extra money from a loyalty scheme, but they had to have worked 25 years of service and be over 55 years of age to qualify.

ET: contrary to sex discrimination, pay protection arrangements on the grounds of age are potentially justifiable. However, they found that the tribunals decision was legally flawed at the EAT and her case was remitted for a hearing in front of a new tribunal.

Question 16

Haskett v Secretary of State for Justice (2020)

Answer 16

Underhill LJ: Whether the employers aim in acting in a way that gives rise to a discriminatory impact can be described as no more than a wish to save costs. An employer reducing its expenditure and staff costs to balance books can be seen as a legitimate aim for the purposes of a justification defence.

We should question if the aim is SOLELY to avoid increased costs.

Question 17

Eweida v United Kingdom (2011)

Answer 17

ECHR: Two claimants in two different jobs. Both identified as christians and the employer said they could not wear identifiable jewellery showing any type of religion. The question was whether it was proportionate to achieve a legitimate aim by telling the employees not to wear jewellery.

Held: Degree of religious discrimination override the aims of the employer. One employee was prepared to wear a small cross as a check in desk operator. She was awarded compensation and it was found that her Art.9 right freedom of religion had been violated.

Question 18

Azmi v Kirklees Metropolitan BC (2007)

Answer 18

Tribunal dismissed an employees claim that an instruction not to wear a veil amounted to direct discrimination.

EAT: no direct discrimination because someone else who was not Muslim would be treated in the same way.

Indirect discrimination given consideration because it treated the claimant less favourably based on her religion. However, there was no discrimination because the practice was justified as a proportionate means of achieving a legitimate aim (it prevented her from doing her job effectively).

Question 19

Jones v University of Manchester (1993)

Answer 19

Ms Jones applied to be a University careers advisor. She was 44 and the preferred age range was 27 to 35. But, she was suitably qualified at the age of 38. She argued that the age range was a required condition and discriminated against mature students.

Court of Appeal: The Court of Appeal agreed with the EAT. The important factor was the number of men and women to whom the requirement applied, ie all male and female graduates with experience. The legislation required that Miss Jones should try to show that the proportion of female graduates who could satisfy the age requirement was smaller than the proportion of male graduates who could comply. Instead, Miss Jones’ case was based on trying to prove that the proportion of female mature graduates who could comply with the age requirement was less than the proportion of male mature graduates who could comply.

Question 20

Bilka-Kaufhaus GmBH v Weber von Hartz (1986)

Answer 20

Objective justification for indirect discrimination.

Weber was a part time worker at the company Bilka KFH fo 15 years. She was refused pension payments because it required her to work full time for 15 years. She alleged sex discrimination because more women work part time than men. They justified it on the basis that the admin costs are higher to give part time workers a pension.

Held (ECJ): could be indirect discrimination but the German state must make the decision themselves. There could be justification if the decision was taken because of a real need for the business to do so.