I often think of the Equality Act 2010 as a technical compliance framework. In practice, it is more nuanced and also demands careful judgment. Nowhere is this clearer than in the interpretation of section 19 on indirect discrimination, where discernment is not merely helpful but essential.
What is discernment in legal interpretation?
In a legal context, discernment is the ability to exercise sound, context-sensitive judgment when applying open-textured legal concepts to real-world facts. It involves more than knowledge of the statute or familiarity with case law. Discernment requires the interpreter to identify what objectively matters in a given situation, to distinguish material facts from distractions, and to weigh competing interests in a way that is principled, proportionate and aligned with legislative purpose. In equality law, discernment is particularly critical because the statute intentionally leaves space for evaluative judgment rather than prescribing rigid outcomes.
The Equality Act as a judgment-based statute
Many of the Act’s core concepts are deliberately open-textured. Reasonable adjustments, particular disadvantage, and proportionate means of achieving a legitimate aim are not defined with mathematical precision. Parliament has chosen a structure that entrusts courts and practitioners with evaluative judgment rather than rigid rules.
This design reflects the reality that equality disputes arise in complex social and organisational contexts. A mechanical or literal approach risks either under-protecting disadvantaged groups or overreaching in a way that undermines legitimate operational aims. Discernment is what allows the interpreter to navigate between these extremes.
Section 19 indirect discrimination and the centrality of discernment
Section 19 requires a claimant to show that a provision, criterion or practice applied to all places those sharing a protected characteristic at a particular disadvantage, and that the disadvantage cannot be objectively justified. Each element of this test involves context-sensitive judgment.
Identifying disadvantage without fault: Essop v Home Office
In Essop v Home Office [2017] UKSC 27, the Supreme Court held that claimants did not need to explain why a promotion assessment disproportionately disadvantaged Black and minority ethnic and older candidates. It was sufficient to show that it did.
This decision illustrates why discernment matters. A more literal or fault-based reading would have required proof of causation or intention. The Court instead recognised indirect discrimination as a tool for addressing structural disadvantage, even where the mechanism is unclear. Discernment allowed the law to focus on outcomes rather than cause.
Understanding context: Homer v Chief Constable of West Yorkshire Police
In Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, a requirement for a law degree for promotion disproportionately adversely affected older employees nearing retirement, less likely to have or be able to obtain a law degree. Although neutral on its face, the timing and impact of the requirement mattered.
Here, discernment enabled the Court to see that equal treatment can still produce unequal effects. A rigid application of the rule would have missed the real-world disadvantage that section 19 is designed to capture.
Objective justification as an evaluative exercise
The justification defence under section 19 is inherently judgment-based. Courts must assess whether the aim is legitimate, whether the means are proportionate, and whether less discriminatory alternatives exist.
In Homer, the aim of improving professional standards was accepted as legitimate, but that did not end the analysis. Discernment was required to ask whether the specific requirement, applied in that way, struck a fair balance.
Discernment also protects defendants
Discernment does not operate only in favour of claimants. In R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, the Court accepted that a policy disadvantaging foreign nationals was justified by national security considerations.
A purely impact-focused reading of section 19 might have rendered such policies unlawful by default. Discernment allows courts to recognise when differential impact is justified by compelling public interest considerations.
Why literalism fails in equality law
Overly literal or simplistic interpretation risks undermining the purpose of the Equality Act. Formal equality can entrench disadvantage. Blanket rules can indirectly discriminate. Excessive caution can chill legitimate decision-making.
Discernment enables interpretation that remains faithful to the Act’s underlying values of dignity, fairness and substantive equality. As Lady Hale observed in Essop, indirect discrimination addresses “dealing with hidden barriers which are not easy to
anticipate or to spot.”
Conclusion
The Equality Act 2010 does not instruct its interpreters to apply rules mechanically. It asks them to judge wisely. Section 19, in particular, depends on careful assessment of context, impact and proportionality. Case law demonstrates that without discernment, policy makers run the risk of either overreaching or fail to address structural inequality. With it, the Act can function as Parliament intended.