Discrimination

Where the respondent seeks to rely on the defence of justification:

(i) the burden of proof is on the respondent to establish justification;

(ii) the classic test in Bilka- Kaufhaus GmbH v Weber Von Hartz [1986] IRLR 317 involves the application of the proportionality principle;

(iii) this principle requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking (the more serious the disparate adverse impact, the more cogent must be the justification for it); and

(iv) it is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the former outweigh the latter (there is no “range of reasonable response” test in this context). It cannot be assumed that, just because a scheme in broad terms achieves certain business objectives, this necessarily establishes justification.