Chapter 16Employing labour2 Indirect discrimination, as where an employer has
applied requirements or conditions to a job but the abil-
ity of some persons to comply because of sex, disability,
marital status or race is considerably smaller and cannot
be justified.
Examples are provided by the following cases.
A further example is offered. A company has a strict
office rule under which women may not wear trousers in
the office. A Muslim woman applies for a job with the
company but is unable to comply with this rule because
religion and custom require that she must cover her legs.
The proportion of the members of her racial or religious
group who can comply with the requirement is consid-
erably smaller than the proportion of other persons who
can apply. There is therefore indirect discrimination,
either on the grounds of race orreligion or belief. Nearly
all the ‘dress’ cases which were formerly brought under
race discrimination could now be brought under the
religion or belief regulations. However, a pure race dis-
crimination might occur where the employer placed an
unnecessarily high standard of English on a job which
excluded many recent immigrants of a different race.Transsexuals
EU law does cover and prohibits discrimination that
results from an employee’s gender reassignment. The
authority is the ruling of the ECJ in Pv S and Cornwall
County Council(1996) where the court decided in favour
of a transsexual who was dismissed after a sex change. The
decision put the UK government under some pressure
to clarify the law and the Sex Discrimination (Gender
Reassignment) Regulations 1999 (SI 1999/1102) were
introduced to cover discrimination on grounds of gender
reassignment in employment and vocational training.
In this connection, mention should be made of the
Gender Recognition Act 2004. Under the Act transsex-
uals who want to register under their new status will be
able to apply for registration. It is not necessary for them
to have had surgery but they will have to have lived for
at least two years in the new gender and intend to con-
tinue to live in it. They will also have to meet medical523Pricev The Civil Service Commission
(1977)
The Civil Service required candidates for the position of
executive officer to be aged between 17^1 / 2 and 28 years.
Belinda Price complained that this age bar constituted
indirect sex discrimination against women because women
between those ages were more likely than men to be
temporarily out of the labour market having children or
caring for children at home. The Employment Appeal
Tribunal decided that the age bar was indirect discrim-
ination against women. The court held that the words
‘can comply’ in the legislation must not be construed
narrowly. It could be said that any female applicant could
comply with the condition in the sense that she was not
obliged to marry or have children, or to look after them –
indeed, she might find someone else to look after them
or, as a last resort, put them into care. If the legislation
was construed in that way it was no doubt right to say
that any female applicant could comply with the con-
dition. However, in the view of the court, to construe the
legislation in that way appeared to be wholly out of sym-
pathy with the spirit and intention of the Act. A person
should not be deemed to be able to do something merely
because it was theoretically possible; it was necessary
to decide whether it was possible for a person to do so
in practice as distinct from theory.Causes of legal change
Education(1978)
The claimant, an overseas student, complained of dis-
crimination in regard to a requirement of the defendants
that a student would have to undergo a 21-month course,
as opposed to a diploma of one year, to complete the
academic stage of training for the Bar where he did not
have a UK or Irish Republic university degree. This rule
was regarded by an industrial tribunal to be discriminat-
ory because the proportion of persons not from the UK
or Irish Republic who could comply was considerably
smaller than persons from the UK or Irish Republic who
could and the rule was not justifiable on other grounds.
The claimant satisfied the tribunal that there had been
indirect discrimination.Comment. The other side of the coin is illustrated by
PanesarvNestlé Co Ltd(1980) where an orthodox Sikh,
who naturally wore a beard which was required by his
religion, applied for a job in the defendants’ chocolate
factory. He was refused employment because the de-
fendants applied a strict rule under which no beards
or excessively long hair were allowed on the grounds
of hygiene. The claimant made a complaint of indirect
discrimination but the defendants said that the rule was
justified. The Court of Appeal decided that as the defend-
ants had supported their rule with scientific evidence
there was in fact no discrimination.