Objective justification, less discriminatory alternatives, and the ‘Great Repeal Bill’

On the 13th July of this year, the UK Government published the European Union (Withdrawal) Bill, more commonly called the ‘Great Repeal Bill’. Aside from the repeal of the European Communities Act 1972 (and with it the proposed ousting of the jurisdiction of the Court of Justice), the Bill’s purpose is to ‘convert the acquis’ of EU law and preserve any UK law implementing EU law. This will include ‘workers’ rights’ and with it their employment discrimination rights.
The efficacy of such a move will be limited if the British judges fail to adopt the same interpretations of these rights as their counterparts in the Court of Justice in Luxembourg. Over the years of Britain’s membership, there have been many references to Luxembourg to clarify the meaning of particular aspects of the discrimination provisions, with the Court generally giving a more liberal interpretation than the domestic courts had suggested would be their preference. One element of the law largely untouched by this process is the objective justification defence to claims of indirect discrimination. This is because the domestic courts have maintained a fiction that their interpretation is consistent with the EU formula. For no apparent reason, the domestic courts have reworded the EU formula whilst labelling it as being no different. This presents a major challenge for the Bill. It would be all too easy for Parliament to assume all is well with the this aspect of workers’ rights, especially when the judges tell them so.
Using a handful of cases, this paper exposes the shortfalls within the domestic law and suggests some solutions. It is not the purpose of this paper to discuss the Bill (which no doubt is due for many amendments), but to focus on one important aspect of discrimination law, both pre- and post-Brexit.