The EAT (Underhill P) has handed down its decision in Pulham v London Borough of Barking, an age discrimination / pay protection case, which is authority for the following propositions:
- in assessing justifiability, a tribunal is entitled to have regard to the fact that a discriminatory measure was negotiated with the unions, but a tribunal cannot abdicate the responsibility of itself carrying out the necessary proportionality exercise.
- the size of relevant budgets is a useful benchmark, but cannot be determinative: an employer cannot justify a failure to eliminate discrimination by allocating the costs of doing so to a particular budget and simply declaring that budget to be exhausted.
- parties should ensure that tribunals are given sufficient information about both (a) the discriminatory impact of a particular measure on claimants and; (b) the alleged costs and the financial background against which the affordability of those costs falls to be judged.
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