1985 Layoff Agreement

Indirect discrimination is not shown, since a neutral practice specifically penalizes a member of a group where there is an “objective justification.” In most cases, this will be a justification based on the need for business. [405] The European Court of Justice has ruled, particularly in cases where it concerns gender discrimination under Article 157 of the Treaty on the Functioning of the European Union, that an employer must demonstrate a “real necessity” of practice with different effects and that it “has nothing to do with the protected characteristic”. [406] The rationale should not include “generalizations” and should not include specific motives for the workers concerned,[407] and budgetary considerations should not be considered “objectives”. [408] Many of the basic judgments concerned employers who provided fewer benefits to part-time workers than full-time workers. Given the particular inconvenience this has caused to women, it was difficult to justify. With regard to national gender-based equal pay rights, the old terminology used is that there must be a “real material factor” found in Section 69 of EA 2010. Despite different titles, the same underlying terms exist as for objective justification, with the need to show a “legitimate objective” and that the measures are “proportionate” to such an objective. In Clay Cross (Quarry Services) Ltd/Fletcher[409], Lord Denning MR stated that an employer could not justify paying a young man a salary higher than that of an elderly lady (who actually trained him), since it was the employer, given the state of the labour market. However, at Rainey against Greater Glasgow Health Board,[410] the House of Lords found that NHS prosthetists, who received 40% less male prosthetists than private prosthetists, had no claim because it had been agreed that such higher prices were necessary to attract their services. “Objective justification” is therefore an organizational necessity. [411] In Enderby/Frenchay Health Authority,[412] the Court of Justice held that a speech therapist paid less than a male counterpart could not be justified solely on the basis that this was due to different collective agreements when there was a gap between market forces, but that this was an objective justification.