In the case of Hardys and Hansons plc v Lax  EWCA Civ 846 (Court of Appeal), the appellant employers were brewers who ran a chain of public houses. The respondent was employed by the appellant and subsequently took maternity leave, and during this time, she put in a request to her employer to job share her post of retail recruitment manager upon her return from maternity leave, or alternatively to take up a tenanted support manager’s job on a job share basis. Her request was denied and she brought an action for unlawful sex discrimination and unfair dismissal in the Employment Tribunal (Tribunal).
Under the Sex Discrimination Act 1975 (SDA), inter alia, a person discriminates against a woman if “he applies to her a provision criterion or practice which he applies or would apply equally to a man, but… which he cannot show to be justifiable irrespective of the sex of the person to who it is applied…”.
The Tribunal stated that it was necessary for them to weigh the justification put forward by the employers against its discriminatory effect. The Tribunal rejected the employer’s justification, that their refusal could be justified irrespective of whether the employee was male or female. As a result, the Tribunal concluded that the employee had been unfairly dismissed. The employers appealed against this finding to the Employment Appeal Tribunal (EAT). The EAT dismissed the appeal, finding no reason to interfere with the Tribunal’s decision. The employers appealed to the Court of Appeal (CoA).
The employer’s argument was that the Tribunal had applied the wrong test by weighing the employer’s justification against the discriminatory effect – instead the employer contended that the tribunal should have given them a ‘margin of discretion’ in deciding whether or not to allow the job share sought by the employee.
The employee’s counter-argument was that although the test laid down by the Tribunal did not require the employer to show that the action taken was the only course of action that could have been taken, the test did not allow the Tribunal to introduce a band of reasonable responses which the reasonable employer could adopt.
In dismissing the appeal, the CoA said that for an employer to fall within section 2(1)(b)(ii) of the Sex Discrimination Act, the Tribunal would need to determine whether the proposed action of the employer would be ‘objectively justifiable and reasonably necessary’. This means that, though the employer needn’t show that no other option was available, there was no scope for a margin of discretion, or range of reasonable responses. It was accepted that the principle of proportionality required the Tribunal to take into account the employer’s reasonable business needs. However, there was still a need to make a judgment based upon fair and detailed analysis of the working practices and business considerations involved in order to arrive at whether the action of the employer was reasonably necessary.