Justification of conduct

By Tolley in association with Emma Bartlett at Charles Russell Speechlys LLP
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The following Employment Tax guidance note by Tolley in association with Emma Bartlett at Charles Russell Speechlys LLP provides comprehensive and up to date tax information covering:

  • Justification of conduct
  • What is proportionality?
  • Proportionality where PCP is attempting to prevent other discrimination
  • Justification of direct age discrimination

Indirect discrimination occurs where a complainant shows that a provision, criterion or practice (PCP) applied to all employees, puts or would put those sharing the complainant’s protected characteristic at a particular disadvantage. The burden then shifts to the employer to defend itself by showing that the PCP is objectively justified. The employer must be able to show that the PCP:

  • is legal
  • is non-discriminatory
  • represents a real objective consideration
  • is a proportionate means of achieving a legitimate aim

Such PCP must therefore be capable of objective justification; it must be a proportionate means of achieving a legitimate aim.

This is different from direct discrimination which, with the exception of direct age discrimination (see below), can never be justified.

See the Prohibited conduct ― direct discrimination and Prohibited conduct ― indirect discrimination guidance notes.

What is proportionality?

There is a well-established four stage test for determining whether the means of achieving a legitimate aim are proportionate. The employer needs to decide whether:

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