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Justification of Indirect Discrimination: range of reasonable responses test does not apply

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The Court of Appeal has, this morning, held that the range of reasonable responses test does not apply when tribunals decide whether an otherwise indrectly discriminatory 'provision, criterion or practice' is objectively justified.

In Hardys & Hansons v Lax, Pill LJ held that the Sex Discrimination Act 1975 demands that:

"The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances." (para. 32).

Thomas LJ added that where the employer is relying on the economic needs of the business, it would be expected to adduce sufficient evidence of that business need to enable the tribunal to "set out at least a basic economic analysis of the business and its needs... the analysis must be through and critical and show a proper understanding of the business of the enterprise." (para. 55)

Hardys & Hansons v Lax