Keeping to a budget could justify indirect discrimination

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What was the case of Heskett v Secretary of State for Justice?

Indirect discrimination occurs when a provision, criterion or practise (PCP) is applied and, although it is not intended to treat anyone less favourably, it places those who share a protected characteristic at a disadvantage. In such a situation an employer may only have a defence to a claim if it can be shown the PCP is objectively justified. In Heskett v Secretary of State for Justice, the question was to what extent increased costs could form part of the argument concerning justification.

What were the facts of the case?

Due to funding cuts and budgetary constraints imposed by the central government, the Ministry of Justice (MoJ) changed its pay policy which led to it taking substantially more time for probation officers to move up the pay scale. This significantly increased the time it would take employees aged under 50 to reach the top pay grade. Mr Heskett claimed that this was indirect age discrimination, as older employers would be on higher salaries and also have better pension contributions.

Did the policy amount to discrimination?

It was held that the policy changes did amount to indirect age discrimination as it led to younger members of staff being placed at a disadvantage. However, the policy was objectively justified as the MOJ had the legitimate aim of trying to ensure that it operated within a reduced budget. It was stated that ignoring the real-life constraints within which the employer operated would be artificial and that living within their means was distinguishable from the aim of solely saving costs.

Key takeaway point

This case does provide some comfort for employers facing budget cuts and making cost saving measures in both the public and private sector. Whilst it is obviously still the rule that an employer cannot discriminate just because it is cheaper to do so the employer’s objectives may be more accurately described as being concerned with other wider issues where there is a limited budget involved meaning effectively that challenges on a costs alone basis will find it difficult to succeed.

Do you require any more information regarding indirect discrimination?

If you have any queries about indirect discrimination issues and/or disputes, please get in touch and we will be happy to advise you. 

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