“On a comparison of cases for the purposes of [indirect, discrimination] there must be no material difference between the circumstances relating to each case.”(b) Choosing the appropriate analytical model

There are five established models available: (a) intrinsically liable; (b) considerable difference; (c) small but persistent difference; (d) the four-fifths rule; and (e) the probability of chance.

(3) Causation
O’Flynn v Chief Adjudication Officer (above)

(4) The Defence of Objective Justification
(a) The meaning of the justification defence
Bilka-Kaufhaus v Weber von Hartz Case 170/84, [1987] ICR 110 (ECJ)
(i) legitimate aim, and
(ii) thatthe means of achieving that aim are appropriate
(iii) and necessary.

(c) Examples of the Defence
(i) Part-time workers and family responsibilities

Home Office v Holmes [1984] ICR 678 (EAT). See also Greater Glasgow Health Board v Carey [1987] IRLR 484 (EAT); Hardys v Lax [2005] ICR 1565 (CA);

London Underground v Edwards (No 2) [1997] IRLR 157 (EAT)

(ii) Testing and educational qualifications
Griggs v Duke Power 401 US 424 (S Ct 1971) at 432

(iii) Physical and health & safety justifications

(iv) Appearance

Noah v Desrosiers t/a Wedge (13 Jun 2008; ET/2201867/07)

(v) Social policy justifications

R v Secretary of State for Employment, ex parte Seymour-Smith Case C-167/97, [1999] ICR 447, ECJ, [69]-[77].