Justifying discrimination

Sometimes it doesn’t count as unlawful discrimination if someone treats you unfairly because of who you are. The Equality Act 2010 says if someone has a good enough reason for treating you unfairly, they may be able to justify discriminating against you.

Read this page to find out more about when discrimination can be justified.

When can someone justify discrimination?

The law which says you mustn’t be discriminated against is called the Equality Act 2010. Discrimination which is against the Equality Act is unlawful. This means you can take action in the civil courts.

But sometimes people are allowed to discriminate against you if they have a good enough reason for doing so. They would need to be able to prove this in court, if necessary. This is known in legal terms as objective justification. If discrimination is justified, it doesn’t count as unlawful discrimination under the Equality Act.

Discrimination can only be justified in certain situations. These are:

• indirect discrimination

• discrimination because of something connected to your disability, this is called discrimination arising from a disability

• direct age discrimination.

What’s a good enough reason?

The Equality Act says discrimination can be justified if the person who's discriminating against you can show it’s a proportionate means of achieving a legitimate aim. If necessary, it's the courts which will decide if discrimination can be justified.

What’s a legitimate aim?

A legitimate aim is the reason behind the discrimination. This reason must not be discriminatory in itself and it must be a genuine or real reason.

Here are examples of legitimate aims:

• the health, safety and welfare of individuals

• running an efficient service

• requirements of a business

• desire to make profit.

Example

A hospital advertises a surgeon’s job for which it requires at least ten years’ experience. You can’t meet this requirement because you’ve taken time off work to care for your children. As you’re a woman, this looks like indirect discrimination because of sex. But the hospital may be able to justify this, if it can show that the job can’t be done properly without that amount of experience. This is likely to be a legitimate aim.

What’s meant by proportionate?

The aim or the reason behind the discrimination must be fairly balanced against the disadvantage you’ve suffered because of the discrimination. This means it must be appropriate and necessary. If there are better and less discriminatory ways of doing things, it will be more difficult to justify discrimination.

Example

The fire service requires all job applicants to take a number of physical tests. This could be indirect discrimination because of age, as older people are less likely to pass the tests than younger applicants. But the fire service can probably justify this. Fire fighting is a job which requires great physical capability. The reason for the test is to make sure candidates are fit enough to do the job and ensure the proper functioning of the fire service. This is a legitimate aim. Making candidates take physical tests is a proportionate way of achieving this aim.

Can saving money be a legitimate aim?

Economic reasons alone are not enough to justify discrimination. Someone can’t justify discrimination by saying it’s cheaper to discriminate. But costs can be taken into account as part of the justification if the person can show there are other good enough reasons for the treatment.

Next steps

• Check how you've been discriminated against

• What are the protected characteristics in the Equality Act 2010?

Other useful information

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

• More about the EASS helpline

Equality and Human Rights Commission (EHRC)

• You can find useful information about discrimination on the EHRC website at www.equalityhumanrights.com