Bradley v London School of English and Foreign Languages Ltd

In an indirect-discrimination claim, objective justification requires a tribunal to compare the seriousness of the disadvantage caused by the provision, criterion or practice to the affected group with the importance of the employer’s legitimate aim. It must decide whether the measure is appropriate and no more than reasonably necessary to achieve that aim.

A tribunal must demonstrate that comparative assessment in its reasons. It is insufficient to assess only the employer’s business concerns. The provision, criterion or practice itself must be justified; the inquiry should primarily address group disadvantage, while avoiding an approach based solely on making an exception for the individual claimant.

The claimant was a freelance trainer engaged by the respondent. She alleged indirect sex discrimination arising from a requirement that trainers arrive at 8.45am for classes beginning at 9.00am. The Employment Tribunal found that the requirement placed women, including the claimant, at a particular disadvantage because of childcare responsibilities. It nevertheless held that the requirement was justified and dismissed the claim.

The claimant appealed only the Employment Tribunal’s reasoning on proportionality. The central issue was whether the tribunal had carried out the required comparison between the discriminatory impact of the requirement and the respondent’s business aims.

1. Appeal allowed. The Employment Tribunal erred in law when deciding that the 8.45am-arrival requirement was justified. Its reasons did not show that it had compared the seriousness of the disadvantage to the affected group with the importance of the respondent’s legitimate aims.

2. The correct proportionality inquiry requires a critical and comparative evaluation. The employer must establish a real need, and the measure must be appropriate and reasonably necessary to meet it. The tribunal must weigh the business need against the discriminatory effects of the requirement: Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601, Allonby v Accrington & Rossendale College [2001] IRLR 364 and Hardys & Hansons plc v Lax [2005] EWCA Civ 846.

3. The Employment Tribunal had identified legitimate aims and considered the respondent’s wish to deliver a professional, up-market service. But it made no assessment of the seriousness of the disparate impact on women. Its reference to a proportionate response to the business aims did not answer the statutory question. Nor did its reasons explicitly apply the reasonably-necessary test.

4. The matter was remitted to the same Employment Tribunal for fresh determination of proportionality. The tribunal must justify the PCP, rather than its effect on this claimant alone. It may consider the claimant’s circumstances, but must concentrate primarily on the group disadvantage and must not treat the issue merely as whether a personal exception should have been made.

• Employment Appeal Tribunal: allowed the claimant’s appeal and remitted the issue of proportionality to the same Employment Tribunal.
• Employment Tribunal, London Central: by a judgment dated 22 March 2017, dismissed the claimant’s claims of indirect discrimination and victimisation.