When is indirect discrimination lawful?

An employer is permitted to indirectly discriminate on the basis of one of the nine protected characteristics listed in the Equality Act 2010, only if doing so is a “proportionate means of achieving a legitimate aim”.

In the recent case of Heskett v  Secretary of State for Justice, Mr. Heskett, a Probation Officer, was subject to indirect discrimination on the basis of his age.  A pay progression policy was changed so that it would take him 23 years instead of 8 years to reach the top pay available for his role, essentially because his employer needed to save money.  As one of the younger employees this disadvantaged him.

Typically the courts have held that saving or avoiding cost cannot, on its own, justify indirect discrimination.  However, this case is interesting because the Court of Appeal held that an employer’s need to reduce expenditure, including staff costs, in response to financial constraints can amount to justification.  Of course the line between the mere saving of cost and the aims upheld as legitimate in this case could be very thin in some situations and the decision should mean that policies which might disadvantage younger or older members of the workforce are easier to defend.