Balancing Justification Against Discrimination

Whiffen v Milham Ford Girls’ School and Another (CA TLR 3 April)

Where a policy adopted by a school governing body imposed a requirement or condition that could be met by 100 per cent of male teachers, while only 77.7 per cent of female teachers could meet it, the burden was on the employer to justify the redundancy policy, not just the redundancy rule required to meet economic constraints. Mrs Whiffen had been teaching at the school for 5½ years under a series of short-term contracts and the failure to renew her contract constituted indirect sex discrimination since it deprived her of the opportunity of partaking in the redundancy avoidance selection process. The employment tribunal having found under s1(1)(b)(i) of the Sex Discrimination Act 1975 that the school’s redundancy policy operated in a discriminatory manner should have then considered under s1(1)(b)(ii) whether that condition was ‘justifiable irrespective of the sex of the person to whom it was applied’; but the tribunal had adopted the employers’ argument on justification that the redundancy policy itself was not inherently discriminatory. What the employer had to show was that the policy of dismissing fixed-term contract holders first was necessary to meet the employer’s needs. The evidence never addressed that question. The employer accordingly wholly failed to demonstrate what was required, and the tribunal should have so held.