Part C Employment law 8: Contract of employment 133
It does so on the basis of 'protected characteristics', namely:
Age
Disability
Sex (including sexual orientation or gender re-assignment)
Race (that is colour, nationality and ethnic or national origins)
Religion or belief
Marriage or civil partnership
Pregnancy or maternity
In the future, discrimination judgements shall be viewed in light of a single 'objective justification' test.
This means employers need to prove their actions were a 'proportionate means of meeting a legitimate
aim'. What this means in practice will be decided by the courts and employment tribunals, though it is
expected that where previous legislation allowed or prevented certain types of discrimination, this will
continue under the new Act.
The 'objective justification' test is based on the Employment Statutory Code of Practice which identifies
that the meaning of the terms 'proportionate' and 'legitimate aims' derive from EU law.
Proportionate means:
The discriminatory effect should be significantly outweighed by the benefits of achieving the aim.
There is no reasonable alternative. If the aim can be achieved with less discrimination, that option
should be followed.
The Employment Statutory Code of Practice states that EU law views treatment as proportionate if it is an
'appropriate and necessary' means of achieving a legitimate aim. But 'necessary' does not mean that the
provision, criterion or practice is the only possible way of achieving the legitimate aim; it is sufficient that
the same aim could not be achieved by less discriminatory means.
Legitimate aims include:
Business needs and efficiency
Health and safety reasons
Particular training requirements of the job
The Employment Statutory Code of Practice states that the aim of the provision, criterion or practice
should be legal, should not be discriminatory in itself, and must represent a real, objective consideration.
The health, welfare and safety of individuals may qualify as legitimate aims provided that risks are clearly
specified and supported by evidence. Although reasonable business needs and economic efficiency may
be legitimate aims, an employer solely aiming to reduce costs cannot expect to satisfy the test. For
example, the employer cannot simply argue that to discriminate is cheaper than avoiding discrimination.
5.2 Time off work
In addition to the rights relating to maternity and parental leave, statute lists several occasions when an
employee has a right to time off work.
(a) Trade union officials are entitled to time off on full pay at the employer's expense to enable them
to carry out trade union duties.
(b) An employee who has been given notice of dismissal for redundancy may have time off to look for
work or to arrange training for other work.
(c) A member of a recognised independent trade union may have time off work (without statutory right
to pay) for trade union activities, for example, attending a branch meeting.
(d) Employers also have a duty to allow an employee to have reasonable time off to carry out certain
public duties, for example performing their duties as a Magistrate. There is no statutory provision
entitling an employee to time off for jury service, but prevention of a person from attending as a
juror is contempt of court.