Employment Law Sex Discrimination Justification Margin Of Discretion

Employment Law Sex Discrimination Justification Margin Of Discretion



In the​ case of​ Hardys and Hansons plc v Lax [2005] EWCA Civ 846 (Court of​ Appeal),​ the​ appellant employers were brewers who ran a​ chain of​ public houses. the​ respondent was employed by the​ appellant and subsequently took maternity leave,​ and during this time,​ she put in​ a​ request to​ her employer to​ job share her post of​ retail recruitment manager upon her return from maternity leave,​ or​ alternatively to​ take up a​ tenanted support manager's job on​ a​ job share basis. Her request was denied and she brought an​ action for unlawful sex discrimination and unfair dismissal in​ the​ Employment Tribunal (Tribunal).

Under the​ Sex Discrimination Act 1975 (SDA),​ inter alia,​ a​ person discriminates against a​ woman if​ "he applies to​ her a​ provision criterion or​ practice which he applies or​ would apply equally to​ a​ man,​ but... which he cannot show to​ be justifiable irrespective of​ the​ sex of​ the​ person to​ who it​ is​ applied...".

The Tribunal stated that it​ was necessary for them to​ weigh the​ justification put forward by the​ employers against its discriminatory effect. the​ Tribunal rejected the​ employer's justification,​ that their refusal could be justified irrespective of​ whether the​ employee was male or​ female. as​ a​ result,​ the​ Tribunal concluded that the​ employee had been unfairly dismissed. the​ employers appealed against this finding to​ the​ Employment Appeal Tribunal (EAT). the​ EAT dismissed the​ appeal,​ finding no reason to​ interfere with the​ Tribunal's decision. the​ employers appealed to​ the​ Court of​ Appeal (CoA).

The employer's argument was that the​ Tribunal had applied the​ wrong test by weighing the​ employer's justification against the​ discriminatory effect - instead the​ employer contended that the​ tribunal should have given them a​ 'margin of​ discretion' in​ deciding whether or​ not to​ allow the​ job share sought by the​ employee.

The employee's counter-argument was that although the​ test laid down by the​ Tribunal did not require the​ employer to​ show that the​ action taken was the​ only course of​ action that could have been taken,​ the​ test did not allow the​ Tribunal to​ introduce a​ band of​ reasonable responses which the​ reasonable employer could adopt.

In dismissing the​ appeal,​ the​ CoA said that for an​ employer to​ fall within section 2(1)(b)(ii) of​ the​ Sex Discrimination Act,​ the​ Tribunal would need to​ determine whether the​ proposed action of​ the​ employer would be 'objectively justifiable and reasonably necessary'. This means that,​ though the​ employer needn't show that no other option was available,​ there was no scope for a​ margin of​ discretion,​ or​ range of​ reasonable responses. it​ was accepted that the​ principle of​ proportionality required the​ Tribunal to​ take into account the​ employer's reasonable business needs. However,​ there was still a​ need to​ make a​ judgment based upon fair and detailed analysis of​ the​ working practices and business considerations involved in​ order to​ arrive at​ whether the​ action of​ the​ employer was reasonably necessary.

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© RT COOPERS,​ 2005. This Briefing Note does not provide a​ comprehensive or​ complete statement of​ the​ law relating to​ the​ issues discussed nor does it​ constitute legal advice. it​ is​ intended only to​ highlight general issues. Specialist legal advice should always be sought in​ relation to​ particular circumstances.




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