Objective Justifying in discrimination
The Equality Act 2010 states if an employer has a good enough reason for treating an employee unfairly because of their age, they may be able to justify the discriminating depending on the circumstances.
When can an employer justify discrimination?
The law which says employers should not be discriminated against an employee because of a protected characteristic under the Equality Act 2010. Discrimination which is against the Equality Act is unlawful and employees have rights to the employment tribunal system.
They are circumstances when employers are allowed to discriminate against employees if they have a good enough reason for doing so. This is known as objective justification. If discrimination is justified, it doesn’t count as unlawful discrimination under the Equality Act.
What’s a good enough reason?
The Equality Act says discrimination can be justified if the employer who's discriminating against the employee can show it’s a proportionate means of achieving a legitimate aim.
What’s a legitimate aim?
A legitimate aim is the reason behind the discrimination. This reason must not be discriminatory in itself and it must be a genuine or real reason.
What’s meant by proportionate?
The aim or the reason behind the discrimination must be fairly balanced against the disadvantage the employee has suffered because of the discrimination. This means it must be appropriate and necessary.
Expert employment solicitor Paul Jackson answers some questions around age discrimination.
Video Transcript
What should I do if I think I am a victim of age discrimination at work?
If you feel you're being discriminated against that work because of your age or perhaps for any other reason that's unfair or unlawful, you should discuss it. You should let the people know who are in authority where you work so at least they have an opportunity to rectify things and do something about what you're complaining about. Once you've done that if you really feel that they're not taking you seriously it's a good idea to bring a grievance, to get it on the official record and to take it further to get them to investigate it.
If that doesn't work you should certainly consider taking legal advice finding out whether you might have an employment tribunal claim because you may well have, certainly the case where an employer didn't take your complaint seriously you would have real cause for concern I think.
What if an employee raises a concern and the employer does nothing?
I think when you've got to stage what you really don't feel that you've been taken seriously or listen to me or the employer just doesn't want to know, unfortunately, it does happen. Then I would advise you to straightaway take legal advice because the chances are there's a bad practice with your employer and something that shouldn't be happening is being allowed to continue this is the point where both for yourself and for your fellow employees, it would be good for you to take further action and investigated what you could do with a lawyer.
What is objective justification?
Objective justification really works in situations where we're talking about people who perhaps are working with dangerous machinery or things that were very very fast and in fact we all know we do slow down a bit as we get older and certainly at some point and sometimes to allow the employee to continue working in very difficult conditions or where they have to work very fast and they find it the struggle, would allow the employer to say objectively, there is a justification for saying well that at this point in your life we don't want you to continue doing that job. Ideally, the employer will look for an alternative job for that person and that can be a justification for singling that person out because of their age.
There are other instances, for example, the University of Cambridge has a policy I believe of saying over a certain age they will retire academics because they need to make way for younger people to come in to develop new young talent. Whether that's ever going to be challenged I don't know but that is another example for how this objective justification for discriminating against people at the older end of the age band might be justified if it is to be tested.
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