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The fourth element in an indirect
discrimination claim is whether the employer can show that the
provision, criterion or practice which prevents flexible working is
a proportionate means of achieving a legitimate aim. The employer
will have a defence to a claim of indirect sex discrimination if he
can establish justification. (However if there has been direct
discrimination, this cannot be justified.)
The main issue in most flexible working cases will be whether
the employer's refusal to agree to flexible working was justified.
Sometimes respondents concede the first 3 elements of indirect
discrimination, and they should be asked to do so, leaving only the
issue of justification to be determined by the tribunal.
The onus of proving justification falls on the employer. The
tribunal first decides the facts and then applies the legal test
for justification to the facts. Ultimately, the question of
justification is primarily a factual one although the legal test
must be followed.
The legal test was set out in the European case of
Bilka-Kaufhaus
GmbH, which is followed by the UK courts and tribunals.
The employer must show that the provision, criterion or
practice:
- corresponds to a real need on the part of the employer,
and
- is appropriate with a view to meeting that need, and
- is necessary to meet that need.
This has been followed in many cases, such as Allonby
and more recently by the President of the EAT in Mitchell
v David Evans Agricultural Ltd UKEAT/0083/06/SM 15.3.06 and
the ECJ in Cadman v Health & Safety Executive [2007]
IRLR 969.
Despite this clear and fairly stringent test, which should be
the starting point, the courts have set out various further tests,
including the requirement to balance the needs of the employer and
employee. These tests, which are not always easy to reconcile, are
set out below.
Critical evaluation by the tribunal
In applying the test in Bilka the tribunal must
also:
- Evaluate critically the justification put forward in
the employer. The tribunal should not simply accept the
explanation offered by the employer without any scrutiny. It must
conduct some form of critical evaluation into whether the
employer's reasons meet the test in Bilka by demonstrating
a real need for the hours of work required by the employer. See
Factors
relating to the justification defence.
-
In
Allonby the
Court of Appeal said that the facts required at the minimum a
critical evaluation of:
- whether the employer's reasons demonstrated a real need
- if there was such a need, a consideration of the seriousness of
the disproportionate impact of the dismissals policy on women
including the claimant, and
- an evaluation of whether the former were sufficient to outweigh
the latter.
- Consider whether there was another way to achieve the
employer's aim. For example, if the employer's aim is to
maintain continuity of service to clients, could a job share
achieve this?
- Balance the employer's need against the discriminatory
impact. The greater the number of women adversely affected
by it, and the seriousness of its impact on any individual worker,
the harder it will be for the employer to justify the provision,
criterion of practice: London
Underground v Edwards. In Hampson,
the HL held that justification requires an objective balance
between the discriminatory effect of the practice, provision or
criteria and the reasonable needs of the employer.
- Examine whether the employer has taken into account the
detriment to the claimant and those in the same position as
her. It is not enough for the employer to merely establish
that it considered its reasons to be adequate. In Hale &
Clunie v Wiltshire Healthcare NHS Trust (1999) DCLD 39 the
Tribunal held that "the decision to introduce compulsory rotating
shifts for all nursing staff and without any allowance for
childcare responsibilities was not justifiable".
In Hardys and Hansons plc v Lax [2005] IRLR 668, the
appellant employer argued that it should be granted a margin of
discretion in deciding whether to permit a job share and that the
employment tribunal should limit itself to considering only whether
the decision fell within the range of responses open to a
reasonable employer (as for unfair dismissal). The Court of Appeal
rejected this argument holding that it is for the tribunal to make
its own judgment as to whether the discriminatory practice is
justifiable: "The principle of proportionality requires the
tribunal to take into account the reasonable needs of the business.
But it has to make its own judgment, upon a fair and detailed
analysis of the working practices and business considerations
involved, as to whether the proposal is reasonably
necessary."
How much evidence is required of the employer?
It is insufficient for an employer to assert that it has
simply followed its normal policy and was unaware of any
discriminatory effect. Once it has been shown that a policy,
practice or criterion has been adopted, the employer is required to
show by means of oral or documentary evidence:
- the importance of the policy, practice or criterion to the
employer and why it is necessary for the employer to have it,
and
- why it is necessary for the policy to have the particular
clause, or for the practice to take the particular form, which
disadvantaged the claimant and others, and
- why it was necessary to apply it to the claimant and others in
the form or manner which it took.
- 'Authorities have stressed the desirability (if not quite
necessity) of there being evidence to establish these
matters'.
- 'What the employer had to show was that the policy of
dismissing fixed-term contract holders first was necessary to meet
the employer's needs. The needs were not identified by the
employer; the necessity for, as opposed to the commonplace use of,
the policy was never considered'.
As the ET pointed out in Manning v Wick Hill Ltd
29.5.02 Case No 2300178/02 if an employer is to establish
a 'real need on the part of the undertaking it must do sufficient
research and analysis in order to reach a sound conclusion'.
Time at which discriminatory impact is to be judged
In flexible hours cases the time will usually be when the
requirement to work full-time or to change shifts is imposed or
when the employer has refused a change of hours. However, this does
not mean that an employer cannot put forward an issue to justify an
otherwise discriminatory PCP that was not considered at the time
the PCP was applied. In British Airways v Starmer [2005]
IRLR 862 the employment tribunal allowed the respondent to put
forward a justification of safety even though it was common ground
that safety considerations had not featured in their decision to
refuse a female pilot's request to work 50% of her contracted
hours. It did however, consider the safety justification separately
from justifications used at the time the decision was made and
rejected the employer's case on its merits. The Court of Appeal
approved the decision holding that the employment tribunal was
entitled to take safety into account as a justification even though
it was argued after the decision was made. However it suggested
that such a justification should be given careful scrutiny and that
it would be open to the tribunal to take into account that the
respondent did not raise the justification at the time so give it
less weight.
Justification must not be discriminatory
The requirement must be justified apart from the sex of the
worker. An argument that it was justified to pay part-time workers
less as this would encourage employers to recruit part-timers would
be inherently discriminatory.
Arguing against a justification defence
An employee who wants to change her hours of work should
consider carefully how the job can be done on the proposed hours,
and try to answer all the employer's concerns about how it would
work. See
Commonly
used justifications for refusing flexible working. First,
of course, it is necessary to find out exactly what the employer's
concerns are either through making an informal approach or a formal
application for flexible working under the ERA or in an SDA
questionnaire or by asking written questions.
When making a claim to a tribunal, the claimant's statement
should contain a detailed description of her job and explain how it
could be done with flexible working. (See
How to run a
tribunal claim).
The evidence of an expert in working arrangements may be
helpful to counter a justification defence. An expert witness can
be instructed to prepare a report (and if necessary give evidence
at the hearing) on the viability of the job being done on the
working arrangement requested by the employee, including how any of
the employer's concerns could be overcome.
Effect of Codes of Practice and EC Recommendations
Codes of Practice and EC Recommendations are not legally
binding but the tribunal must take them into account when reaching
its decision. The following are relevant to the employer's duty re
flexible work:
- The European Council Recommendation on Childcare
- EC childcare good-practice guide
- The EOC Code of Practice.