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In on the act: Indirect Discrimination and Burden of Proof Regulations

first_imgFeatures list 2021 – submitting content to Personnel TodayOn this page you will find details of how to submit content to Personnel Today. We do not publish a… Our continuing series of quick guides to major employment legislation putskey information at your fingertips and brings you up to date with the latestdevelopments. This week Jane Brown, senior solicitor with the employment teamat Manches, looks at changes to sex discrimination law, with the recentintroduction of the Indirect Discrimination and Burden of Proof RegulationsMost employers are all too familiar with the provisions of the SexDiscrimination Act 1975 (SDA). However, not everyone will be as well acquaintedwith the recent changes to sex discrimination law in the Sex Discrimination(Indirect Discrimination and Burden of Proof) Regulations 2001 (the Regulations),which came into force on 12 October 2001 and implement the EC Burden of ProofDirective. Since it is principally women who benefit from the sex discrimination laws,this article will refer to them as the claimants, although of course the lawalso applies to men. A common area where the SDA applies is where an employer turns down arequest from a female employee with young children to work part-time. She canusually show that the requirement to work full-time adversely affects morewomen than men, since women are more likely to be primary carers for children.Even so, a woman still has to satisfy several criteria before she can prove shehas been discriminated against, but these have been relaxed by the Regulations.Indirect discrimination Prior to the Regulations, indirect discrimination was defined as occurringwhere an employer applies a requirement or condition to a female employee whichit applies equally to men, but is such that: – The proportion of women who can comply with it is considerably smallerthan the proportion of men – The employer cannot show it to be justifiable irrespective of gender – It is to the employee’s detriment because she cannot comply with it Relaxed test The changes introduced by the Regulations should make it easier foremployees, by removing the following two hurdles: Requirement or condition Under the Regulations, an employee needn’t prove a requirement or conditionhas been applied to her. All she has to show is that her employer has applied a‘provision, criterion or practice’. Women will undoubtedly find it easier tosatisfy this test by challenging non-contractual practices, such as a longhours culture, or recruitment criteria which are desirable but not essential. Compliance A woman no longer has to show she cannot comply with the ‘provision,criterion or practice’ – she only has to show it is to her detriment. Again,this will make it easier to prove discrimination. If an employer refuses a request from a woman with young children to movefrom full-time to part-time work, for example, she will have to demonstratethat working full-time is to her detriment, but she will no longer have to showshe could not comply with it. In the past this has proved an obstacle to bringing a successful claim forhigh-earning women. For example, in Sykes v JP Morgan (unreported), thetribunal said that because Sykes could afford childcare, she could comply withthe requirement to work full-time (although this case is being appealed). There is still a ‘get out of jail’ card for employers, however. Under theRegulations, as previously, even if an employee manages to prove thatdiscrimination has occurred, the employer can still defeat her claim by provingthe discrimination was justified. In the example of a woman with childrenrequesting part-time work, the employer would need to demonstrate why the jobcannot be done on a part-time basis. Burden of Proof Until now, employment tribunals have had some discretion over the questionof whether inferences of discrimination should be drawn in cases where theemployer has not provided an adequate explanation for its behaviour. The Regulations have amended the SDA so that where an employee hasestablished facts which point to discrimination, tribunals are now obliged toinfer discrimination unless the employer can prove otherwise. At first sight it may look as if this is not a significant change – this iscertainly the view the Government takes in its guidance to the Regulations.However, there is an important difference, since the Regulations require thetribunal to find for the employee if it has not been convinced by theemployer’s answer. In the past (for example in Sidhu v Aerospace CompositeTechnology, 2001, ICR 167 (CA) tribunals have not always so found because theyhave had absolute discretion in this respect. A further development From April 2003, legislation is due to provide both mothers and fathers ofchildren under six (or of disabled children under 18) with a legal right torequest flexible working hours. Workers will be entitled to a full explanation in writing from an employerwho chooses to reject such a request, with a right, as a last resort, to go toan employment tribunal. This will be separate from and in addition to anyrights under the SDA. Conclusion It is becoming easier for employees to bring discrimination claims. Thismeans employers must deal carefully with requests for part-time work fromfemale employees, in particular, and it is likely their only hope will be torely on justification arguments. Decisions concerning recruitment, promotion, requests for part-time work andso on, must also be handled and documented scrupulously. If not, employers facecostly discrimination cases. Comments are closed. Related posts:center_img Previous Article Next Article In on the act: Indirect Discrimination and Burden of Proof RegulationsOn 29 Jan 2002 in Indirect discrimination, Personnel Todaylast_img read more