DIRECT DISCRIMINATION

Direct Discrimination



Direct Discrimination

Objective justification

Objective Justification refers to the allowance to the employer to discriminate directly or indirectly. Discrimination must only be on the basis of age. The discrimination should be proportionate contributing towards a legitimate aim. Where age-based practices are involved, there it is very essential to provide evidence to test the objective justification of the matter. Only the employer's assertions would not be enough.

What does proportionate means?

Proportionality test refers to the criteria, practice or provision should be the only non-discriminatory alternative to achieve the aim; it should provide more benefits than the negative effects of discrimination and employer should justify his/her discriminatory act as proportionate.

Any discriminatory effect on the basis of age should be based on importance and benefits of its legitimate aim for which the employer must have no rational substitute. If the legitimate aim is gained by non-discriminatory or less discriminatory way then this should be given preference. The means involving achievement of legitimate aim with proportionality is a balanced act. According to the UK law or European Law, any treatment which is proportionate is an achievement towards legitimate aim if it's suitable and essential. It was objected that the words 'appropriate and necessary' appear in European directives instead of the word 'proportionate'. The Government of Labour rejected this objection. The House of Commons explained the matter as stating that both concepts are same working towards the achievement of legitimate aim. The means are not discriminatory in the fulfilment of the same goal. If the language in British Law is changed then that would narrow the scope and matter of justification because that particular change can be interpreted very strictly. That's why; the language of the Law should be interpreted with compatibility with the directive (Butler, 2006).

It doesn't mean that there aren't any alternate ways to achieve the legitimate aims; it should be the priority to achieve it on less-discriminatory means. Cost for using none or less discriminatory approach should only be justified by the employer when there is valid reason for it. If the employer or service provider has not complied with its duty to make applicable rational adjustment, it will be complicated for the service provider to show that the treatment was proportionate. The more the disadvantage occurred due to the discriminatory act, the more the objective of justification is convincing. The employer or the service provider should support their claims stating that the treatments were justified otherwise generalization won't be enough for justification. According to Paragraph 4.28 the Employment Code tells that health, wealth and safety of individuals can qualify as legitimate aims which provide the clearly specified risks and supported by evidence (Butler, 2006).

Disability Rights Commission (DRC) supported the justification investigation, but it argued that the phrasing should be strong to imitate EU directives in more depth. Justification can only be achieved if the treatment is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and ...