Objective justification, less discriminatory alternatives, and the ‘Great Repeal Bill’
| DOI | 10.1177/1358229117729071 |
| Published date | 01 September 2017 |
| Date | 01 September 2017 |
| Subject Matter | Articles |
Article
Objective justification,
less discriminatory
alternatives, and the
‘Great Repeal Bill’
Michael Connolly
Abstract
On the 13 July of this year, the UK Government published the European Union
(Withdrawal) Bill,
1
more commonly called the ‘Great Repeal Bill’. Aside from the repeal
of the European Communities Act 1972 (and with it the proposed ousting of the jur-
isdiction of the Court of Justice), the Bill’s purpose is to ‘convert the acquis’ of EU law
and preserve any UK law implementing EU law.
2
This will include ‘workers’ rights’ and
with it their employment discrimination rights.
3
The efficacy of such a move will be
limited if the British judges fail to adopt the same interpretations of these rights as their
counterparts in the Court of Justice in Luxembourg. Over the years of Britain’s mem-
bership, there have been many references to Luxembourg to clarify the meaning of
particular aspects of the discrimination provisions, with the Court generally giving a
more liberal interpretation than the domestic courts had suggested would be their
preference. One element of the law largely untouched by this process is the objective
justification defence to claims of indirect discrimination. This is because the domestic
courts have maintained a fiction that their interpretation is consistent with the EU
formula. For no apparent reason, the domestic courts have reworded the EU formula
while labelling it as being no different. This presents a major challenge for the Bill. It
would be all too easy for Parliament to assume all is well with this aspect of workers’
rights, especially when the judges tell them so. Using a handful of cases, this article
exposes the shortfalls within the domestic law and suggests some solutions. It is not the
purpose of this article to discuss the Bill (which no doubt is due for many amendments),
but to focus on one important aspect of discrimination law, both pre- and post-Brexit.
University of Portsmouth, Portsmouth, UK
Corresponding author:
Michael Connolly, School of Law, Richmond Building, Portland Street, Portsmouth PO1 3DE, UK.
Email: michael.connolly@port.ac.uk
International Journalof
Discrimination and theLaw
2017, Vol. 17(3) 195–212
ªThe Author(s) 2017
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229117729071
journals.sagepub.com/home/jdi
Keywords
Objective justification, less-discriminatory alternatives, alternative practice, banding,
reasonably necessary, Enderby,Hampson,Harrod,Benson,Barry v. Midland Bank,Bilka,
Bridgeport Guardians,Albermarle v. Moody,Griggs v. Duke Power
Introduction
European Union (EU) lawyers in general, and discrimination lawyers, in particular, will
be familiar with the ‘Bilka test’ of objective justification,
4
which is the expression of the
Court of Justice’s general principle of proportionality
5
in the context of (employment)
discrimination law. Many will know also that this represents the ‘business necessity
defence’ devised by the US Supreme Court, which developed the notion of indirect
discrimination (‘disparate impact’), beginning with Griggs v. Duke Power.
6
It is unfor-
tunate (for many) that for decades British courts have been proffering a diluted version of
the defence, while asserting this is consistent with Bilka and its progenies. This article
explores these cases, their decisions, reasoning and language to expose these shortcom-
ings as inconstant with EU law, as well as principle and policy. It concludes that the only
realistic solution is a forthright legislative restatement of the test, and post-Brexit, the
introduction of a statutory rule of interpretation mandating a liberal and purposive
interpretation of all equality law, which will align more closely with British and
EU interpretations and applications of this law, while remaining beyond the jurisdiction
of the Court of Justice.
The concept of indirect discrimination
Statistics reveal a racially unbalanced workforce or gender pay gap; yet, there is no
evidence of any facially discriminatory c ause. What to do? The concept of indirect
discrimination was developed to address such scenarios. If claimants can lay acause
at the employer’s door, say, word of mouth hiring, an entrance exam favouring Whites,
or a pay regime favouring predominantly male occupations, then a prima facie case of
discrimination can be established. This is so where the employer had no discriminatory
intent and there were many causes beyond the emp loyer’s control. For instance, an
employer may not be responsible for the inferior education of minorities, who are now
disfavoured by its (unnecessary) entrance exam,
7
nor for women choosing lower paid
(but equally skilled) occupations according to cultural norm s.
8
Nonetheless, the law
provides the victims with a cause of action against the employer.
But the employer has a defence. If it can show that the cause is an employment
practice appropriate and necessary to achieve a legitimate employment goal, then there
is no liability. This is key. Without the defence, employers would be obliged to hire by
quota, politically and economically unthinkable in any western economy. But the precise
application of the defence is key to resolving any unnecessary pay gaps and other
workplace imbalances. Thus, the focus of this law is on discriminatory effects and
196 International Journal of Discrimination and the Law 17(3)
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