Indirect Discrimination, Justification and Proportionality: Are UK Claimants at a Disadvantage?

Abstract

The minimum standard of scrutiny for the justification defence in the context of indirect discrimination was first set out by the European Court of Justice (CJEU) in Bilka-Kaufhaus GmbH v Weber von Hartz (1986). This established that an indirectly discriminatory measure is justified if it meets a real need and is appropriate and necessary for meeting that need. The UK courts’ approach to the concept of proportionality within the context of this justification defence may nevertheless have distinct disadvantages for claimants in comparison with their EU counterparts. The approach of the UK courts is assessed here by considering the development of case law in this area, both in the Employment Appeal Tribunal and in the higher courts. When compared to the approach taken by the CJEU, it becomes apparent that there is a significant difference between the ways in which UK courts and the CJEU interpret the justification defence. Findings show that the approach of the UK courts significantly disadvantages claimants, leading to the conclusion that the UK may not be fully compliant with EU law. To remedy this defect, it is suggested that there are at least two practical alternative solutions. The first is that Parliament could incorporate a strict necessity test into the Equality Act. Alternatively, the courts could develop a ‘robust approach’ to proportionality. The outcomes of a large number of employment law cases are examined here, appearing to suggest that the latter approach may have greater benefits for claimants than those associated with adopting a strict necessity test, although it is unlikely that either will find favour with Parliament or the courts.