In the light of high profile cases at British Airways and National Air Traffic Services, Iain Patterson, employment law expert at Browne Jacobson, looks at forthcoming discrimination legislation and how companies can avoid falling foul.

Obvious discrimination in the workplace is less and less frequent, which all would agree is a positive development. How often do you hear someone make a racist, sexist or homophobic comment to a colleague? The answer, for most of us, would surely be ‘not very often’.

However, though discrimination is happily less rife than it once was, it still remains, sometimes in subtle or even subconscious forms – for example, recruitment processes where employers might simply recruit more of the same. We like what we know, and appoint people who we think are like ourselves.

Also, employers often forget about indirect discrimination and the effect that policies and procedures can have on certain groups of staff. Take the example of Ben Sargeaunt-Thomson, the 6’10” graduate and would-be air traffic controller, whose job offer from National Air Traffic Services was withdrawn because he was too tall for the organisation’s workstations.

He is currently claiming indirect sexual discrimination, on the basis that men are generally taller than women, so NATS’ decision indirectly discriminates against male staff and applicants.

There are more obvious examples, for example concerning the requirement for employees to work full or part time. Staying with the airport theme, a recent case against British Airways concerned a minimum number of hours for a female pilot.

Jessica Starmer was held to have been indirectly discriminated against because she was not allowed to work 50% of her full time hours on returning from maternity leave. British Airway's policy was not to allow pilots with less than 2000 hours flying time to reduce their hours below 75%, on obvious safety grounds.

This policy was, however, to Mrs Starmer's detriment – as a woman she belonged to a group affected considerably more by this policy than men. BA's arguments as to why the policy was required were held as insufficient to amount to objective justification.

That is the crux of the issue in a case of indirect discrimination: whether a policy can be objectively justified by the organisation responsible. Can an employer justify treatment that is to the detriment of a considerably larger proportion of one group, protected in legislation by their sex, race, sexual orientation, religion or belief, than another group?

From 1st October 2005, there will be a revised definition of indirect sex discrimination, bringing this into line with legislation on race, sexual orientation and belief. The revision will require employers to objectively justify a provision, criterion, practice or policy which causes a particular disadvantage, by showing that:
 

• the requirement meets a legitimate business aim
• it is a proportionate means of meeting that aim

In the face of this new legislative climate, to avoid any doubt over potentially discriminatory policies, organisations should look to put in place the following steps:
 

• carefully consider provisions, criteria, practices or policies that cause a disadvantage, and determine the business aim of the practice
• carry out a thorough and critical analysis of the practice and the extent to which it meets the business aim
• avoid making assumptions as to what can and cannot work for the business
• be able to demonstrate that the practice it wishes to follow is reasonably necessary

Often organisations do not mean to discriminate against any particular group, but decisions and policies they consider necessary to their operations can inadvertently do so. By keeping the above measures in mind, employers can help protect themselves from the unexpected damage – in terms of litigation and negative publicity – of an indirect discrimination case.

Iain Patterson is a partner in the employment law practice at specialist law firm Browne Jacobson.