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.
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?
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. Access to facilities – comparable worker An agency worker’s right is to treatment in relation to relevant facilities that is no less favourable than that given to an actual comparable worker 2 – an employee or worker directly employed by the hirer. First, the hirer should establish if there are any comparable workers or employees. To be comparable they should be: •doing the same or broadly similar work to the agency worker •working at the same location as the agency worker or, if there is no such person, be in another location owned by the hirer (this is to avoid any confusion when a company has several different locations and may have, for example, a canteen in one particular location to which all direct employees in all the locations have access). If there are no comparable workers or employees there is no entitlement to equal treatment. Access to information on job vacancies Regulation 13 From day one of an assignment, all agency workers will be entitled to be provided with information about any relevant job vacancies within the hirer that would be available to a comparable employee or worker. Hirers can choose how to publicise vacancies, whether it is via the internet/intranet or on a notice board in a communal area. But the agency worker should know where and how to access this information. Access to vacancies is not: This obligation does not constrain hirers' freedom regarding; •any qualification or experience requirements such as time in service with the organisation •how they treat applications This right will not apply in the context of a genuine ‘headcount freeze’ where posts are ring fenced for redeployment purposes or internal moves which are a matter of restructuring and redeploying existing internal staff in order to prevent a redundancy situation. Access to vacancies comparator: The need to...
