Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001
For all sex discrimination cases to be heard in Employment Tribunals on or after 12 October 2001, the new Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 will apply. Introduced to implement the European Directive on the Burden of Proof, the new Regulations will affect two main areas in Employment Tribunal sex discrimination cases: firstly the burden of proof and secondly the definition of indirect sex discrimination.
The changes to the burden of proof will mean that where an Applicant presents a case which is potentially discriminatory, then the Respondent must provide an adequate defence. If they do not then the Tribunal "shall" find in the Applicant's favour. This goes further than the current guidance on the drawing of inferences as set out by the Court of Appeal in King v The Great Britain China Centre [1991] IRLR 513 which simply provides that in these circumstances the Tribunal "may" infer discrimination. The distinction is one of degree. From 12 October, unless the Respondent provides a proper explanation then the Tribunal is obliged to reach a finding of unlawful sex discrimination.
The changes to the indirect sex discrimination provisions extend the current definition: there will be indirect sex discrimination where an employer applies "a provision, criterion or practice which he applies or would apply equally to a man, but which is such that it would be to the detriment of a considerably larger proportion of women than men" and is to the Applicant's detriment and cannot be justified.
This broader definition avoids the unnecessarily restrictive need to show a "requirement or condition". However, following the Employment Appeal Tribunal decision in Falkirk Council v Whyte [1997] IRLR 560, indirect discrimination cases have tended to ignore the strict wording of "requirement or condition" in favour of a broader definition. By retaining the need to show "a considerably larger proportion" of women than men, it is unlikely that this amendment to the Sex Discrimination Act will have any major impact.
What we do however now have is a disarming array of different definitions of indirect discrimination. In the Sex Discrimination Act itself, we have the old "requirement or condition" provisions which continue to apply to Part III goods and services cases. For Part II employment and vocational training claims before the Employment Tribunal, we have the new definition. Under the current Race Relations Act 1976, the definition follows that of the old Sex Discrimination Act. However the Race Discrimination Directive, to be implemented by 19 July 2003, contains a third definition : "where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage...". This definition is likely to be followed when the Framework Directive is implemented in respect of sexual orientation, religion, age, and disability. The Disability Discrimination Act approaches indirect discrimination by yet a fourth route, the wording being "an employer discriminates against a disabled person if for a reason which relates to the disabled persons disability..."
As the government itself acknowledged in its evidence to the Select Committee on the European Union in December 2000, "it could, in some circumstances, be unsatisfactory" to have such a variety of different definitions. Given these four definitions, this is perhaps an understatement.