The Court of Appeal has held that the ‘range of reasonable responses’ test cannot be relied on by an employer seeking to justify an indirect sex discrimination claim. By Linda Farrell
For a dismissal to be fair, it must be supported by an acceptable reason and a tribunal has to be satisfied that the dismissal was fair in all the circumstances. This is assessed by the ‘range of reasonable responses’ test, which means a tribunal is not entitled to substitute its own view of whether the employer’s actions were reasonable or not, but must recognise that different employers may reasonably react differently in response to the same set of facts.
In the recent case of Hardys & Hansons plc v Lax  IRLR 665, the Court of Appeal considered an argument by the employer that the ‘range of reasonable responses’ test should also stand as the yardstick for measuring the defence of justification for indirect sex discrimination.
While this was a bold submission, and ultimately unsuccessful, it was by no means a lost cause in light of the decision in Jones v Post Office  IRLR 384 (a disability discrimination case), in which the Court of Appeal held that a tribunal was not entitled to interfere with an employer’s assessment of the risk of an insulin-dependent employee continuing to drive, provided the assessment was properly conducted and produced an answer that was not irrational. If the reason for the less favourable treatment was material and substantial, it was irrelevant that the tribunal might have come to a different conclusion.
The claim against Hardys & Hansons was brought by Mrs Lax, a retail recruitment manager who asked to return to work after maternity leave on a part-time or job-share basis. Her request was refused. While she was away, a reorganisation took place, as a result of which her job ceased to exist. Although she was offered a new role, she told her employer that she would be unable to work full-time. She was then made redundant and informed that there were no part-time recruitment roles available.
The tribunal considered that the new role could have been split between job-sharers and that the employer’s objections to this mode of working were overstated. It upheld Lax’s claims of unfair dismissal and sex discrimination.
The Court of Appeal then concluded ‘not without hesitation’, to uphold the tribunal’s decision in the employee’s favour. It said that the test for justification under s.1(2)(b)(ii) of the Sex Discrimination Act 1975 requires the employer to show that the provision, criterion or practice in question is objectively justifiable, 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 requirement – e.g. that the job must be done on a full-time basis – is reasonably necessary. There is no place in this analysis for the margin of discretion permitted to employers when deciding whether to dismiss or not.
On 1 October 2005, the Employment Equality (Sex Discrimination) Regulations 2005 came into force, introducing a new definition of indirect discrimination in line with that applicable to most other strands of discrimination. Under the new provisions, justification will not be possible unless the employer can show that any discriminatory provision, criterion or practice is a proportionate means of achieving a legitimate aim, therefore putting the test applied in Hardys & Hansons on a statutory footing.
- Consider all flexible working requests fairly. A blanket policy applied inflexibly may be discriminatory
- Generalised, unsupported statements are insufficient to establish justification
- Consider alternatives, consult with those affected and do an impact assessment
- Ensure that your decisions can be justified objectively.
Linda Farrell is a partner at Bristows