Section 15 Justification cf Section 19
In Stott v Ralli Ltd [2022] IRLR 148, section 15 justification was analysed by HHJ Auerbach:
… The formulation of the defence in s 15(1)(b) is, however, in identical terms to the defence to a complaint of indirect discrimination found in s 19(2)(d). Unsurprisingly, therefore, the authorities on the s 15 defence draw on the authorities on the s 19 defence for a number of essential principles which carry across, such as that the test is an objective one for the appreciation of the tribunal and not a ‘band of reasonable responses’ test.
- I agree also with Mr Davidson that the tribunal should in principle follow the general approach outlined in Allonby and numerous other authorities, in particular by weighing the employer’s justification against the discriminatory impact. To do that, it must engage in what is called critical scrutiny, considering whether the means correspond to a real need of the undertaking, are appropriate with a view to achieving the aim in question, and are necessary to that end.
- Mr Davidson also properly accepted in oral argument that, while the test is an objective one and not a band of reasonable responses test, the authorities also establish that the test as to whether the measure is ‘necessary’ does not mean that the employer must show that it was the only course open to it in order to achieve its aim. It effectively means ‘reasonably necessary’, as judged by the tribunal. There is useful discussion of this point in a number of authorities, such as Hardy & Hansons plc v Lax [2005] EWCA Civ 846, [2005] IRLR 726, [2005] ICR which is one of the authorities that was referred to in the Boyers case. The point is also picked up in Harrod.
- Whilst much of the s 19 defence jurisprudence readily maps across to the s 15 defence, it is important not to lose sight of the fact that what the employer is seeking to justify in each case is a different type of thing. A complaint under s 15 does not involve the application of a provision, criterion or practice giving rise to group disadvantage; and passages in the authorities on s 19 which focus on how the aspect of group disadvantage feeds into the justification test, such as the passage cited to me from Barry v Midland Bank, are therefore not of direct assistance in considering the defence in a s 15 case. Mr Davidson submitted that the law was, as it were, there to protect all people with the given disability. As to that, of course it must be kept in mind by the tribunal that what the employer is seeking to justify in a s 15 case is conduct that is because of something arising from disability. Nevertheless, group impact is not a consideration in this context.
Emphasis is added by counsel.
Elsewhere, the relationship between the duty to make reasonable adjustments and section 15 is analysed in Griffiths by Elias LJ.
