Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Equality, diversity and inclusionSex discrimination

Fair enough

by Personnel Today 1 Jan 2006
by Personnel Today 1 Jan 2006

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 [2005] 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 [2001] 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.

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

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.

Action points



  • 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

Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
Female mechanic sues Network Rail for sex discrimination
next post
Hutton pushes case for incapacity benefit reform

You may also like

Gregg Wallace case: don’t be too hasty to...

11 Jul 2025

It’s no secret – parity in the workplace...

10 Jul 2025

One in eight senior NHS managers from black...

1 Jul 2025

Progressive DEI policy is a red line for...

27 Jun 2025

BBC Breakfast bullying and misconduct allegations under investigation

20 Jun 2025

Finance professionals expect less emphasis on ESG and...

18 Jun 2025

Lack of role models a ‘barrier’ for people...

17 Jun 2025

Pride 2025: why corporate allyship still matters

16 Jun 2025

EHRC defends interim update as ‘balance of clarity...

13 Jun 2025

HR is second ‘most sexist profession’ survey suggests

13 Jun 2025

  • Empower and engage for the future: A revolution in talent development (webinar) WEBINAR | As organisations strive...Read more
  • Empowering working parents and productivity during the summer holidays SPONSORED | Businesses play a...Read more
  • AI is here. Your workforce should be ready. SPONSORED | From content creation...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+