A 6ft 10 inch tall graduate recently lost a sex discrimination claim against National Traffic Services, who had first offered him a job and then withdrew it on safety grounds because of his height; Paul Lambdin, Partner in employment at Stevens & Bolton LLP looks at the thorny issue of indirect sex discrimination.

The applicant was 6ft 10 inches tall but the employer felt that cramming his 38 inch legs under his desk would be dangerous and pose a risk to his own health and those of passengers.

He claimed that he had been discriminated against on the grounds of his sex. He argued that a greater proportion of men than women were over 6ft tall and that this therefore discriminated against men. Of course, it has long been held that having a height requirement for work is potentially discriminatory – the 5ft 10 inch height rule for the police was abandoned long ago. However, indirect discrimination of this kind has always been capable of “justification”.

In this case the Employment Tribunal held that the health and safety implications justified the otherwise discriminatory act.

This case highlights, again, that discrimination claims can come from a variety of unexpected angles. No-one foresaw, when the sex discrimination legislation was implemented however, that hours worked and length of service might amount to sex discrimination. However both have been held to be capable of being indirect sex discrimination and, indeed, UK legislation had to be amended about part-timers because of these arguments.

Other attempts to argue indirect discrimination from unexpected angles have met with less success. Requiring a candidate for a job to be over a certain age and refusing benefits to same sex couples have, for example, been held not to be indirect sex discrimination.

However, the fact that the arguments were run to appellate level illustrates the risk of unexpected indirect discrimination claims in other areas. There are risks for employers of other, perhaps unexpected, issues giving rise to indirect discrimination claims in other strands of discrimination, for example with sexual orientation, religious belief and, of course, when it is in force, age discrimination.

In the second place, it is impossible to predict how the defence of justification will be applied in particular cases. In this case the health and safety defence was held to be sufficient justification.

However, the Employment Appeal Tribunal has been inconsistent in its approach to justification in discrimination claims. For example, pilots working for BA have recently argued, unsuccessfully, in the Employment Appeal Tribunal that the compulsory retirement age constituted indirect sex discrimination.

In that case the Employment Appeal Tribunal held that health and safety factors for pilots, was, among other things, significant justification for the compulsory retirement age. However in another Employment Appeal Tribunal case involving BA the Employment Appeal Tribunal has said that health and safety was not sufficient justification. For all practical purposes it is impossible for an employer to know, in advance, whether a particular factor may amount to justification.

These problems are compounded by a recent Court of Appeal decision. The Court of Appeal has said each individual Employment Tribunal has to decide, for itself, whether it thinks the justification was sufficient.

In unfair dismissal claims Tribunals, of course, are only permitted to decide whether the employer acted “within a reasonable band of responses”. This is different in discrimination cases and, specifically is different in deciding whether there has been justification for otherwise discriminatory actions.

As justification will be a question of fact in each case, it will be impossible to appeal most of these decisions. Some critics suggest Employment Tribunals are not always the best judges of what or how serious health and safety factors may be.

There is also likely to be significant difficulties with age discrimination when it comes into force next year. While the introduction of this legislation will make it certain that discrimination on the grounds of age is outlawed, it may open fresh angles for clever applicants to argue that they have been indirectly discriminated against on the grounds of age.

There is a further difficulty with the age discrimination legislation, however, because the government are proposing to permit justification for direct discrimination.

While this will be welcomed by employers it does increase the uncertainty of litigation. The government says in its consultation document that it intends the age justification defence to apply in the same way as it does in current indirect discrimination cases.

The current uncertainty that applies in direct claims will therefore be transplanted into direct age discrimination claims.

The only practical approach for employers is to make a decision in good faith on the basis of their own judgment and then make commercial decisions whether to fight cases to a conclusion or seek to settle them.

In many cases the knock-on effects in the business of settling cases involving health and safety or other possible justification defences, will mean many employers will be forced to fight cases to a conclusion.