Discrimination Law: Justification, Alternative Measures and Defences Based on Sex

An employment practice which has a disproportionate impact on women and cannot be ‘justified’ amounts to indirect sex discrimination under s 1(1)(b), Sex Discrimination Act 1975 (SDA). It may also be unlawful under European Community law, in particular A 141 (equal pay) and the Equal Treatment Directive (76/207). The same formula is used to define indirect racial discrimination in s 1(1)(b), Race Relations Act 1976 (RRA). In Allonby v Accrington & Rossendale College the Court of Appeal scrutinised the meaning of ‘justified’ under the SDA. This is important for employers because the precise definition dictates how onerous their burden is to justify a challenged employment practice. This case concerned in particular justification where (i) less-discriminatory alternative measures existed to achieve the same goal and (ii) the employer's defence itself was based on discrimination.