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Can discrimination ever be justified?

Is there any type of discrimination that can be justified? Barristers Michael Salter and Chris Bryden advise on another tricky practice problem.

Is there any type of discrimination that can be justified? Barristers Michael Salter and Chris Bryden advise on another tricky practice problem.

THE SITUATION

Last week you discussed discrimination. I am concerned about discriminating against my employees, but have been told that certain types of discrimination can be justified. What does this mean?

THE ADVICE

In last week's Legal Lessons the different forms of discrimination were considered (direct, indirect, harassment, victimisation and failing to make reasonable adjustments).

Following on from that it is worth considering the circumstances in which it is open to employers to argue that, even if they have discriminated against an employee, the discrimination was "justified".

This defence, recognised to some extent in all types of discrimination (age, sex, race etc), is not however open to all forms of discrimination.

For instance it can be relied upon in cases of indirect sex discrimination, but not direct sex discrimination. So, for example, an employer cannot argue that dismissing a woman simply because she is a woman can ever be justified.

However, indirect sex discrimination can be justified, as can "disability related" discrimination.

Of the latter, the Disability Rights Commission gives the example of a carpet layer who, owing to chronic and serious back pain, cannot bend down. The refusal to offer this person employment is capable of being justified.

In order to be justified the practice must show that the reason for the different treatment of an employee is both material and substantial.

This means that generalised assumptions, such as that people with impaired vision cannot use computers, would not be a justification as it is not related to the particular circumstances of the employee, and so is not material.

However all cases are fact sensitive - for instance the courts have accepted that the rejection of a person suffering from congenital myotonic dystrophy from a job entering text was justified, as in the particular role there was a vital need for accuracy.

The same might be argued in respect of a surgery's typist if they deal with patient records.

A reason is "substantial" if it is more than minor or trivial. It must carry real weight although it need not be the best possible conclusion that could be reached in the light of all known medical science.

Therefore the practice is not required to give the best possible justifiable reason, but simply a real reason.

The limited availability of the justification defence means that all practices, when considering actions that may amount to discrimination, should fully consider the impact of the decision they are about to make.

Even if the decision is taken with the best of motives, it may result in an act of discrimination for which there may be no defence. Discrimination in the field of employment is notoriously difficult and specialist advice should always be sought in situations where an issue arises.

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