Under the Equality Act 2010, it is not permitted to discriminate against people based on what are known as ‘protected characteristics’ (including race, sex and disability).
As well as direct discrimination, the Act also outlaws what is known as indirect discrimination. The aim is to protect certain people with protected characteristics from being disadvantaged by broad requirements (known as a provision, criterion or practice (PCP)) which whilst not intended to treat anyone less favourably, have the effect of disadvantaging that particular group of people.
Broadly, an individual is potentially guilty of indirect discrimination where they apply a PCP which, although it also applies to people who do not share the protected characteristic, nonetheless puts someone with the protected characteristic at a particular disadvantage compared to others.
However, if the PCP can be shown to be ‘a proportionate means of achieving a legitimate aim’ then it will not constitute unlawful discrimination.
Proportionate means of achieving a legitimate aim
If a court or tribunal needs to determine whether a PCP is unlawful, the usual practice is to split the justification issue into two questions:
- Can the respondent establish that it was pursuing a legitimate aim?
- Can the respondent establish that the measures taken to achieve that aim were appropriate and proportionate?
Legitimate Aim
The question is whether, looked at objectively, the action can be seen as justified. The aim must itself be lawful and non-discriminatory; the EHRC’s statutory Service Code establishes that ‘reasonable business needs and economic efficiency may be legitimate aims’, but a court would potentially assess the stated aim on its specific merits.
Proportionality
To show that its actions were proportionate, a respondent does not need to show that it had no alternative course of action; rather, it must demonstrate that the measures taken were "reasonably necessary" in order to achieve the legitimate aims.
Information on this site is by way of general guidance only and may not apply in your particular circumstances. You should not act or refrain from acting upon information on this site without seeking independent legal advice.