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How Equality Act 2010 applies to adult communication impairments in Britain

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Objective justification

An employer or service provider etc is not liable for some kinds of discrimination if it can show the 'objective justification' defence applies.

Key points

  • This defence will often be key to whether there is unlawful discrimination.
  • There is a lack of case law on disability, because different defences applied before the Equality Act 2010.

What is the justification defence?

For 'discrimination arising from disability' and 'indirect discrimination' the employer, service provider etc has a defence if it shows its conduct is a 'proportionate means of achieving a legitimate aim'.

One could go into much more detail on this. However, some key points from the case law are:

  • The 'legitimate aim' must represent a real, objective consideration.
  • It is not enough that there is a legitimate aim - the action taken must be 'proportionate'. Courts take into account the seriousness of the discriminatory impact and look at whether the aim was sufficient to outweigh this. The more serious the impact, the more convincing the objective justification must be.
  • It is also relevant whether the aim could be fulfilled by less discriminatory means.

For disability this defence is new, so the courts have yet to develop how objective justification applies in practice to disability.

Example: communication skills for job
An employer turns down a job applicant with a communication disability because it believes the candidate would not have communication skills required to do the job. On a claim for 'discrimination arising from disability', it would be for the employer to show that the objective justification defence applies. Amongst other things, it would be relevant whether reasonable adjustments could have been made to enable the applicant to do the job.

Example: in the bank
A bank cashier is serving a customer with an evident communication disability. It is taking some time for the customer to explain what he wants. The cashier asks the customer to step aside and wait while the cashier serves a queue behind. Assuming this is not direct discrimination (to which there is no justification defence), the bank would have a defence to 'discrimination arising from disability' if it shows this action was a proportionate means of achieving a legitimate aim, ie. the 'objective justification' defence.

However, showing objective justification is unlikely to be easy. It would be relevant what other steps the bank might have taken, such as bringing on more staff. If that or other proportionate steps could not have been taken, it also seems a court should consider whether the aim (eg. serving other customers more quickly) outweighs the discriminatory impact on the person with the communication impairment.

Apart from 'discrimination arising from disability', other types of claim might also be relevant such as the duty to make reasonable adjustments.

Case: fitness to practise as a barrister
The Bar Standards Board Review Panel decided in this case that a barrister with aphasia was fit to practise. The Panel pointed out that judges should make reasonable adjustments in court (though for judges this may be under duties outside of the Equality Act).
In the matter of Horan, Bar Standards Board Review Panel, 2010. This is not a case on the Equality Act 'objective justification' defence, but in many respects it raises similar issues.

More detail on the justification defence

There is no justification defence for direct discrimination, but that is quite narrow so it is often difficult to bring oneself within it. There is also no justification defence for harassment.

The justification defence does not apply to reasonable adjustments but the reasonableness test there has a similar role.

The result is that - apart from the reasonable adjustment duty - whether there is unlawful discrimination will very often depend on whether there is 'objective justification'.

The defence is based on European Union law. Objective justification has been used for some time in relation to various discrimination grounds other than disability, for example sex discrimination and more recently age. There is a lot of case law, from both Europe and the UK. However, with limited exceptions, the defence has only applied to disability since October 2010 when the Equality Act 2010 took effect. This means there are not yet any reported cases about the defence being applied to disability.

There is guidance on the objective justification defence in paragraphs 4.25-4.32 of the Employment Code of Practice, and paragraphs 5.25-5.36 of the Services Code of Practice.