Objective Justification Clause Samples
Objective Justification. This is the only element of these Regulations where there can be “objective justification” for less favourable treatment. Essentially, hirers have to ask themselves “is there a good reason for treating the agency worker less favorably?” Cost may be one factor to take into account but hirers are unlikely to be able to rely on cost alone to justify different treatment. Practical and organizational considerations could also be a factor. Even if there is objective justification, hirers may want to consider whether it is possible or feasible to offer agency workers certain access to facilities on a partial basis, as an alternative to excluding them altogether.
Objective Justification. 2.1 If the pay of a particular job is to be enhanced to reflect market conditions it is necessary to demonstrate that there are ‘objectively justified grounds’, i.e. that recruitment and retention difficulties exist in relation to the job(s) concerned which would result in actual or foreseeable organisational and/or operational problems.
2.2 Equal Pay considerations should be taken into account and the possibility of an equal pay challenge assessed. The Council will not be able to rely on the fact that the market suggests that certain jobs, usually done by women are paid less than jobs usually done by men because the market rate may itself be based on discriminatory assumptions. The overriding principle of the decision must be based on what the Council needs to pay to get the person needed to fill the vacancy.
2.3 Other considerations when making this decision should also be taken into account such as operational issues and the reputation of the Council which may suffer if key services are not fully staffed.
2.4 In addition there is a need to show that the comparator job is substantially the same in terms of duties and responsibilities and that there are no material differences in the overall reward package i.e. holiday entitlement, sick pay scheme, flexible working arrangements. These are not cash rewards but could account for the lower rate of pay.
2.5 The application/renewal/withdrawal, of a market force supplement is subject to approval of the relevant Director, in consultation with the Head of Corporate Human Resources.
2.6 Market force supplements will apply equally to all staff in the particular job (or specialist area). Costs will be met from the relevant service area.
Objective Justification is the process by which an employer may be able to objectively justify discrimination as being a proportionate means of achieving a legitimate aim. If challenged it is for the employer to justify the provision, criterion 2 Discrimination by association for pregnancy and maternity is not included specifically in the Act. However an employee could complain of sex discrimination by association if treated less favourably because their partner is pregnant or on maternity leave. or practice so evidence should be produced to support any assertion that the discrimination is justified3. Considerations should be made for justification on the merits of each individual case. The question of whether the provision, criterion or practice is a proportionate means of achieving a legitimate aim should be approached in two stages: Is the aim of the provision, criterion or practice legal and non-discriminatory, and one that represents a real, objective consideration? If the aim is legitimate, is the means of achieving it proportionate – that is appropriate and necessary in all circumstances?