Employment Tax

Justification of conduct

Produced by Tolley in association with Emma Bartlett at Charles Russell Speechlys LLP
  • 21 Dec 2021 16:41

The following Employment Tax guidance note Produced 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

Justification of conduct

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:

  1. is legal

  2. is non-discriminatory

  3. represents a real objective consideration

  4. 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:

  1. the objective is sufficiently important to justify limiting a fundamental right

  2. the measure is rationally connected to the objective

  3. the means chosen are no more than is necessary to accomplish the objective

  4. there were no other less discriminatory means of achieving the employer’s objective

Azmi v Kirklees MBC [2007] IRLR 484

Proportionality means balancing the degree of impact against the justification offered. It

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