Objective justification for pension lawyers
Produced in partnership with Elizabeth Ovey of Radcliffe Chambers
Objective justification for pension lawyers

The following Pensions guidance note Produced in partnership with Elizabeth Ovey of Radcliffe Chambers provides comprehensive and up to date legal information covering:

  • Objective justification for pension lawyers
  • What is objective justification?
  • The EU background
  • How the courts and tribunals approach objective justification generally
  • Statutory guidance
  • The costs plus approach
  • Objective justification test distinguished in cases of direct and indirect discrimination
  • Government to be accorded a margin of discretion
  • Further guidance from case law on age discrimination
  • Implications for pension schemes

What is objective justification?

Under the Equality Act 2010 ('the Equality Act'), there is prima facie indirect discrimination if A applies a provision, criterion or practice (sometimes called a 'PCP') to persons generally but that PCP:

  1. puts or would put persons who have a relevant protected characteristic at a particular disadvantage when compared with other persons, and

  2. puts or would put B at that disadvantage

This is something referred to as the ‘group disadvantage’ test.

However, there will be no indirect discrimination in fact if A can show that the PCP is a proportionate means of achieving a legitimate aim. This defence to a complaint of indirect discrimination is known as 'objective justification'.

The relevant protected characteristics under the Equality Act are:

  1. age

  2. disability

  3. gender reassignment

  4. marriage and civil partnership

  5. race

  6. religion or belief

  7. sex, and

  8. sexual orientation

(Pregnancy and maternity is a protected characteristic for the purposes of the Equality Act generally, but not for the purposes of s 19).

Direct, as opposed to indirect, discrimination occurs if, because of a protected characteristic, A treats B less favourably than he treats or would treat another person.

In general, objective justification cannot be a defence to a complaint of direct discrimination under the Equality Act. Exceptionally, it may be a defence to a complaint on the ground of age.

It may also be a