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This question touches on a variety of issues in relation to discrimination claims. So we must first address how the court considers discrimination. In all cases the burden of proof lies with the applicant, although in Khanna v MOD (1981) it was held that if the actions of the employer establishes prima facie discrimination, the burden shifts to him to show the reason for his actions. This approach was confirmed by the Court of Appeal in Baker v Cornwall County Council (1990) and in King v Great Britain China Centre (1991) Neil LJ said that a difference in race (or gender) and a difference in treatment will often point to the possibility of discrimination. Deirdre is at present employed part-time but worked full-time for the Authority until she had her family and has made it clear she is prepared to do so again.
The Authority has told her that the job of supervisor is not open to part-time staff nor can it be job shared. The Authority are thus imposing a condition in relation to promotion. As such Deirdre may be able to argue that she is the victim of indirect discrimination sl (l) (b) of the SDA in relation to access to opportunities for promotion´ and so by default s 6 (2) (a) of the same act. To successfully argue indirect discrimination, Deirdre must show that the four requirements laid down in sl (l) (b) are satisfied. In other words she must show that Northbury are imposing a condition or requirement which applies to all. That the proportion of women who can comply with the condition is considerably smaller than the proportion of men who can comply.
That Northbury are not justified in imposing the condition. And finally that she has suffered a detriment because she cannot comply with it. The potential condition being laid down by Northbury is that of full-time working. This manifests itself in two ways: first the refusal to allow part-timers to apply and second, the refusal to allow the holder of the job to job share.
To constitute a condition for the purposes of the Act, the requirement must be necessary (Pearl v CSC (1983) ). This interpretation means that, should an employer merely express a preference´ , then the first requirement for an indirect discrimination claim is not satisfied, a view expressed as unfortunate by the Court of Appeal in Meer v Tower Hamlets (1988). In Deirdre's case, however, it is clear that working full-time is a necessary requirement because in terms of the application she has been specifically told that she cannot apply because she works part-time. The Authority are thus imposing a condition. Second, Deirdre must show that the proportion of women who can comply with the condition is considerably smaller than the proportion of men who can comply. While Holmes v HO (1984) decided that the imposition of full-time working was indirectly discriminatory to women, Kidd v DRG (UK) (1985) demonstrates that it is necessary for Deirdre to choose the correct comparative group.
In Pearse v Bradford Metropolitan District Council (1988) one of the requirements of eligibility to apply for the post of senior lecturer in a college was that the applicants had to work full-time. Pearse argued that the requirement was discriminatory and produced statistics that out of all the academic staff, 21. 8 % of women worked full-time compared with 46. 7 /o of men. The EAT held that the wrong comparative group was used. The group should have been those academic staff eligible to apply for a senior lectureship due to qualifications and experience.
On this comparison, there was little difference in the proportions and therefore no discrimination. This rule was further substantiated in Jones v University of Manchester (1993). In establishing the comparative group, therefore, Deirdre must choose those at the work place who are qualified to apply for the post of supervisor. If, when looking at this group, the proportion of women working full-time is considerably smaller than the proportion of men working full-time, she will have established the second requirement for an indirect discrimination claim.
But the client need be advised that considerably smaller´ is not defined by the statute. In Fulton v Strathclyde Regional Council (1986) it was held that a difference of 10 % was not sufficient to establish discrimination. In the USA, a difference of 20 % constitutes discrimination and the CRE has recommended the adoption of the rule here. So Deirdre must show that at least 20 % more men in the relevant comparative group work full-time compared with the women. The third requirement Deirdre must establish is that the imposition of the condition is not justifiable irrespective of sex. This defence available to the employer has had a somewhat chequered history.
In Steel v UPOW (1978) Phillips LJ stated that the employer had to establish that the condition was necessary and not merely convenient to establish the defence. This stringent test was watered down by the Court of Appeal in Ojutiku v Manpower Services Commission (1982) where that court said that whether the employer was justified in imposing the requirement depended on whether his decision would be acceptable to right thinking people as (having) sound and tolerable reasons for doing so. The ECJ in Bill-Kaufhaus v Weber von Hartz (1987) stated that the employer had to show objectively justified grounds and Hampson v DES (1989) stated that to show that a condition is justifiable requires an objective balance to be struck between the discriminatory effect of the condition and the reasonable needs of the party who applies that condition. Wood LJ in Cobb v Secretary of State for Employment and Manpower Services Commission (1989) said It was for the tribunal to carry out the balancing exercise involved, taking into account all the surrounding circumstances and giving due emphasis to the degree of discrimination caused against the object or aim to be achieved the principle of proportionality. In Deirdre's case, therefore, the employer must establish an objectively justified reason for the imposition of the requirement that only full-time staff can apply for the job. From the facts it would appear that the Authority feel that the job can only be adequately performed full-time.
This is indicated by the refusal to consider job sharing. Despite the Holmes judgment, this may be justifiable in relation to certain types of job. In Clymo v Wandsworth London Borough Council (1989) the EAT held that the refusal of an employer to allow a woman to job share a managerial post was not discriminatory in that full-time working was an inherent characteristic of the job rather than a condition or requirement. If such an argument can be validly raised in respect of a supervisors job, then the requirement that the job be performed full-time will not be discriminatory. This, however, is not the only argument put forward by the client. The Authority are refusing part-timers the opportunity to apply for the post, whether such workers are prepared to work full-time or not.
What the Authority appears to have done is to make an assumption that because Deirdre works part-time at present, due to her childcare responsibilities, she cannot work full-time. Northbury are therefore making assumptions based on Deirdre's sex. Such assumptions are discriminatory (Horsey v Dyfed County Council (1982) ) and therefore the requirement that the applicants must work full-time at the time of their application is not justifiable. The final hurdle for Deirdre is to show that she has suffered a detriment because she cannot comply with the condition.
Detriment is not defined by the Act but Lord Brandon in MOD v jeremiah (1980) said that it meant no more than putting under a disadvantage. In this case Deirdre has suffered because she cannot apply for a promotion due to the condition imposed by the Authority. Without doubt she has suffered a detriment. The phrase cannot comply was interpreted by the House of Lords in Manila v Dowell Lee (1983) as meaning whether it is reasonable to expect a person to comply with the condition, not whether the person can theoretically´ comply.
In this case Deirdre could argue that it is not reasonable to expect her to change to full-time working, presumably with the childcare costs involved, just so that she can apply for a job she may not get. As such, the requirements for an indirect discrimination claim will be made out as long as the relevant comparisons show that the proportion of female employees qualified to apply for the job and who work full-time is considerably smaller than the proportion of men who work full-time. The client must be advised to consider Deirdre´ s as a claim from any other eligible applicant, and must disregard the current circumstances of her employment for the purposes of this application.
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Research essay sample on Indirect Discrimination Full Time
