Case law: Court clarifies when employer's discriminatory practice is lawful because it is a proportionate means of achieving a legitimate aim

An employer arguing that an otherwise discriminatory practice is a proportionate means of achieving a legitimate aim, and therefore lawful, should ensure they have compared its effect on the relevant employees against the importance of their legitimate aim, a recent ruling makes clear.

Freelancers providing training services were asked to come to work at 8.45am so they could start teaching at 9am on the dot. One found this difficult as she was a single parent who had to drop her child off at school before coming to work. She came within the definition of an employee for discrimination purposes so she claimed indirect discrimination on grounds of sex.

It is indirect discrimination if an employer operates a provision, criterion or practice (PCP) such as a work policy which puts a group of employees who share a protected characteristic – such as sex - (including the person who is complaining about it) at a disadvantage compared with people who do not share that characteristic.

However, a PCP will not be unlawful if it is a proportionate means of achieving a legitimate aim. An employer who can show there were legitimate reasons for the requirement, which could not be achieved through less discriminatory means, and the requirement does not go further than is reasonably necessary, will not therefore be acting unlawfully.

The PCP in this case was defined as "all staff are to arrive early for a 9am class at 8.45am". The Employment Tribunal (ET) found that this put women (including this particular freelancer) at a particular disadvantage compared to men because many more women than men are primarily responsible for child care, and their ability to work certain hours is restricted significantly.

However, the ET went on to find that the proposed arrival and starting times were legitimate aims, and the way the employer had dealt with them was a proportionate means of achieving those aims. The claim therefore failed.

The Employment Appeal Tribunal disagreed. It said proportionality required an assessment of the effect of the PCP on the relevant people compared to the importance of the legitimate aim to the employer. The ET had failed to apply this approach and the case was therefore referred back to be reconsidered.

Operative date

• Now

Recommendation

• Employers arguing that a PCP is a proportionate means of achieving a legitimate aim should ensure they have compared its effect on those affected by it, against the importance of the legitimate aim to the employer

Case ref: Bradley v London School of English & Foreign Languages Ltd UKEAT/0011/18/LA