WHAT DO YOU NEED
provision, criterion practice
putting group at particular advantage
putting claimant in that group at a disadvantage
no objective justification
Eweida
no need to show group disadvantage for religious characteristics
Hampson
HL stated justification requires objective balance between the discriminatory effect of the practice, provision or criteria and the reasonable needs of the employer
Price v Civil Service Commission
Age restrictions for promotion or training = provision criteria or practice
provision criteria or practice
AGE RESTRICTIONS for promotion
length of service requirements
preference for full time status (70% of PT workers are women)
height requirements
satisfying vague promotion procedures
refusal to allow mother part-time work on return from maternity leave or work from home
requirement to work over time
length in Uk requirements
Home Office v Holmes [1985]
A refusal to allow a returning mother part-time working = PCP
Lockwood [2001])
A refusal to allow a returning mother to work from home if feasible = PCP
Enderby [1993]
PAY SETTING ACTIONS = PRACTICE
O’Flynn v Adjudication Officer [1996]
disadvantage can be potential
- if intrinsically liable to affect group = disadvantage
London Underground v Edwards (No 2)
Only 1 in 21 women were affected BUT we can logically infer that this practice MUST necessarily have a disparate to women
neutral provision –> shift pattern
particular disadvantage –> 95% of her group not affected but women intrinsically more likely to be affected
no justification
ex p Seymour Smith [2000]UKHL 12
challenge to QP for UD protection
- 77% men met QP
- 69% women met QP
GAP NOT LARGE
BUT disadvantage because disparity persisted over many years
BUT objectively justified
Eweida v BA
christian wanted to wear her cross but BA had a uniform code
- NO GROUP DISADVANTAGE SO NO ID
- cross is not religious requirement (like hijab or turban) it is an individual decision
ECTHR:
- to require evidence of group disadvantage = excessive burden on applicant
seems like in religion cases we ought to be careful about imposing the group disadvantage requirement
*Home Office (UK Border Agency) v Essop & Ors
test that affected minorities more (less likely to do well)
- to bring successfully ID claim, victim must show particular disadvantage had been occasioned to himself
- MUST SHOW INDIVIDUAL DISADVANTAGE
Something in the test must affect individual
- problematic
- previously assumed no need to show that the disadvantaging factor played out to affect individual
- only CA case
- difficult for individuals to show something in particular disadvantaged them
Bilka-Kaufhaus
to be objective justified, rule must
- correspond to real need of the undertaking
- be appropriate to achieve the object pursued
- be necessary to that enD
Enderby
It accepted that market forces may justify some of the difference in pay, but they might not justify all of it
- ONLY to extent it is required to achieve the goal
PROPOTIONALITY APPLIES: assess whether market forces in determining pay is sufficiently significant to provide objective justification for the difference
