Employment Law: Sex Discrimination - Justification - Margin of Discretion | Policies & Law | Government Laws | government contract law

Home

About Us

Privacy

Terms & Conditions

Add Your Link

Add Your Article

Search:



		Automotive

		Food & Recipe

		Recreation

		Self Enhancement

		Travel & Accommodation

		Health & Therapy

		Children

		Banking & Finance

		News & Events

		Games & Play

		Business & Commerce

		Policies & Law

		Academics & Learning

		Society & Communities

		Art & Culture

		Research & Science

		Home Family & Garden

		Medicine & Treatment

		Jobs & Employment

		Sports & Adventure

		Online Shopping

		Relationship & Lifestyle

		Property & Estate

		Internet & Computers

	Home –› Policies & Law –› Government Laws

	Employment Law: Sex Discrimination - Justification - Margin of Discretion

In the case of Hardys and Hansons plc v Lax [2005] EWCA Civ 846 (Court of Appeal), the appellant employers were brewers who ran a chain of public houses. The respondent was employed by the appellant and subsequently took maternity leave, and during this time, she put in a request to her employer to job share her post of retail recruitment manager upon her return from maternity leave, or alternatively to take up a tenanted support manager's job on a job share basis. Her request was denied and she brought an action for unlawful sex discrimination and unfair dismissal in the Employment Tribunal (Tribunal).

Under the Sex Discrimination Act 1975 (SDA), inter alia, a person discriminates against a woman if "he applies to her a provision criterion or practice which he applies or would apply equally to a man, but... which he cannot show to be justifiable irrespective of the sex of the person to who it is applied...".

The Tribunal stated that it was necessary for them to weigh the justification put forward by the employers against its discriminatory effect. The Tribunal rejected the employer's justification, that their refusal could be justified irrespective of whether the employee was male or female. As a result, the Tribunal concluded that the employee had been unfairly dismissed. The employers appealed against this finding to the Employment Appeal Tribunal (EAT). The EAT dismissed the appeal, finding no reason to interfere with the Tribunal's decision. The employers appealed to the Court of Appeal (CoA).

The employer's argument was that the Tribunal had applied the wrong test by weighing the employer's justification against the discriminatory effect - instead the employer contended that the tribunal should have given them a 'margin of discretion' in deciding whether or not to allow the job share sought by the employee.

The employee's counter-argument was that although the test laid down by the Tribunal did not require the employer to show that the action taken was the only course of action that could have been taken, the test did not allow the Tribunal to introduce a band of reasonable responses which the reasonable employer could adopt.

In dismissing the appeal, the CoA said that for an employer to fall within section 2(1)(b)(ii) of the Sex Discrimination Act, the Tribunal would need to determine whether the proposed action of the employer would be 'objectively justifiable and reasonably necessary'. This means that, though the employer needn't show that no other option was available, there was no scope for a margin of discretion, or range of reasonable responses. It was accepted that the principle of proportionality required the Tribunal to take into account the employer's reasonable business needs. However, there was still a need to make a judgment based upon fair and detailed analysis of the working practices and business considerations involved in order to arrive at whether the action of the employer was reasonably necessary.

If you require further information contact us.

Email: enquiries@rtcoopers.com

? RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

Author: Dr Rosanna Cooper

Author Bio:

RT Coopers Solicitors, solicitors, solicitor, EMPLOYMENT LAWYER, redundancy, redundancy law, legal advice, law, legal, lawyers, LAWYER, employment law, employment lawyers, employment law advice, employment solicitors, employment tribunal, employers, employees, Sex Discrimination, Discrimination Claims, Unfavourable treatment, race discrimination, racial discrimination, Unfair Dismissals, law firm, FIRM, Sex discrimination, data protection, Sexual harassment, maternity rights, Maternity and Paternity Disputes, Outsourcing Contracts, Senior Executive Appointments and Service Agreements, Suspensions, Tribunal Claims, bringing a claim to the employment tribunal, TUPE Transfers, Redundancy, Breach of Contract Disputes, Employment Contracts, Staff Handbooks, Wrongful dismissals, Contract Drafting, Contract Dispute, Equal Pay, Right to Equal pay, contracts, Contract Disputes. lease contact us for more information: enquiries@rtcoopers.com or visit our website at www.rtcoopers.com/practice_employment.php