Burden of Proof Regulations: an EOR guide
The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 20011 were laid before Parliament on 20 July 2001 and come into force on 12 October.
1SI 2001 no.2660.
The Regulations were made under the powers conferred by the European Communities Act 1972, and therefore can amend existing law only to the extent required by the Directive.
The Regulations amend the Sex Discrimination Act 1975 in two significant respects. They widen the definition of indirect discrimination so as to encompass a "provision, criterion or practice" rather than merely a "requirement or condition". The Regulations also provide that the burden shifts to the employer to disprove sex discrimination once an applicant has proven that there is a case to answer.
The Cabinet Office view is that neither of these changes "will be significant in practice". EOR does not agree. As we explain below, we consider that both changes will be of practical importance for the way in which sex discrimination law works.
Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001
Citation, interpretation and extent
1.-
(1)These Regulations may be cited as the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001.
(2)In these Regulations "the 1975 Act" means the Sex Discrimination Act 1975.
(3)These Regulations shall extend to Great Britain only.
The Regulations implement EC Directive 97/80 concerning the burden of proof in cases of discrimination based on sex (EOR 76).
There are separate Regulations for Northern Ireland2, with no substantive differences in wording.
2Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001, SR 2001 no.282.
Commencement and transitional provisions
2.-
(1)These Regulations shall come into force on 12 October 2001 (in this Regulation referred to as "the commencement date").
(2)Regulations 5 and 6 apply in relation to proceedings instituted before the commencement date, as well as those instituted on or after that date, but do not affect any case in which proceedings in the employment tribunal, county court or sheriff court were determined before the commencement date.
The UK was obliged to implement this Directive by 22 July 2001. Northern Ireland, for once, implemented EC law earlier than the rest of the UK, as the Northern Ireland Regulations came into operation on 20 August 2001. The Regulations come into force in Great Britain on 12 October.
Regulation 2(2) specifies that the changes are retrospective, to the extent that they will apply from 12 October in any case that has yet to be adjudicated, in the same way as applied when the cap on compensation for discrimination was removed. In the case of public sector employees, it is arguable that in appropriate cases the Directive would be directly enforceable if the case were heard between 22 July and 12 October. In any case where the change in the law is likely to prove to be significant, however, it would probably make more sense for the parties to request an adjournment.
Sex discrimination
3. For section 1 of the 1975 Act there is substituted -
"Direct and indirect discrimination against women
1.-
(1)In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if -
(a)on the ground of her sex he treats her less favourably than he treats or would treat a man, or
(b)he applies to her a requirement or condition which he applies or would apply equally to a man but -
(i)which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and
(ii)which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
(iii)which is to her detriment because she cannot comply with it.
(2)In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if -
(a)on the ground of her sex, he treats her less favourably than he treats or would treat a man, or
(b)he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but -
(i)which is such that it would be to the detriment of a considerably larger proportion of women than of men, and
(ii)which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
(iii)which is to her detriment.
(3)Subsection (2) applies to -
(a)any provision of Part 2,
(b)ss.35A and 35B(a), and
(c)any other provision of Part 3, so far as it applies to vocational training.
(4)If a person treats or would treat a man differently according to the man's marital status, his treatment of a woman is for the purposes of subsection (1)(a) or (2)(a) to be compared to his treatment of a man having the like marital status."
New s.1(2) now provides the definition of sex discrimination in cases of discrimination in the employment field - ie Part 2 (what used to be Part II) of the Act, the provisions relating to discrimination by barristers, and provisions relating to vocational training.
There is no change to the definition of direct discrimination. The definition of indirect discrimination has been substantially widened, in accordance with the requirements of the Directive.
No absolute bar needed
The old definition allowed an indirect discrimination case to be brought only where the employer imposed a "requirement" or a "condition". That was interpreted by the Court of Appeal in the race discrimination case of Perera v Civil Service Commission [1983] IRLR 166 as meaning a "must", something which has to be complied with in the sense that lack of compliance would be an absolute bar. In Meer v London Borough of Tower Hamlets (EOR 21), also a race discrimination case, this led to the Court of Appeal holding that a criterion for being placed on a long list for selection was not a "requirement or condition" since it was not a "must".
The new definition will allow human resources policies, including criteria for recruitment, promotion or dismissal, to be challenged if they tend to disadvantage members of one sex, even where they do not take the form of absolute bars. There is a fair chance that this will substantially improve the Sex Discrimination Act's effectiveness. When the legislation was first enacted, it was thought that indirect discrimination, which focuses on group-wide policies and practices, would be the main engine of change, rather than direct discrimination, which focuses on individual decisions. For many years, the restrictive interpretation of the definition of indirect discrimination has allowed employers to avoid scrutiny of the discriminatory impact of selection, promotion, and pay criteria by phrasing them as preferences rather than as absolute musts.
The new definition will also allow multifactor requirements or systems to be placed under scrutiny, and is likely to enable claims to be brought as to the indirectly discriminatory effects of the individual components of a policy or procedure, such as in a job evaluation system or in a redundancy selection procedure.
Disparate impact test
The first limb of the new definition of indirect discrimination imposes a new test of disparate impact. In order to establish a prima facie case, the applicant must show that the provision, criterion or practice "is such that it would be to the detriment of a considerably larger proportion of women than of men".
The language used here - "would be to the detriment of" a considerably larger proportion of women than men - may be contrasted with the old definition requiring an examination of the "proportion of women who can comply with it" compared with the proportion of men. Three differences can be noted. The old definition required the applicant to furnish statistical evidence of the comparative impact of the requirement on relevant pools in the workplace, and many cases have fallen at this hurdle. The new definition appears to allow a more wide-ranging comparison of the impact generally on women and men of such a provision, criterion or practice.
This is reinforced by the use of the words "would be", which signals that the inquiry is not necessarily confined to the impact of the provision, criterion or practice on other employees of the same employer.
Thirdly, the language used suggests that the focus of the new definition is less exclusively statistical than has been the case until now. This is not required by the Burden of Proof Directive, but the change of emphasis anticipates the requirements of the EU Race Discrimination Directive and the Framework Employment Directive. The recitals to these newer Directives provide: "The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence." As we pointed out in our analysis of the Race Directive, this wording stems from the inability, or reluctance, of other EU countries to collect statistics relating to racial origin.
We can anticipate, therefore, that in future some cases of indirect discrimination will be proven by the use of expert economic or sociological evidence, which will allow the tribunal to decide whether a practice, criterion or provision would be to the detriment of a considerably larger proportion of women than men, or vice versa.
Note that whereas the Burden of Proof Directive refers to a provision, criterion or practice that disadvantages a "substantially" higher proportion of one sex, the Regulations use the word "considerably" - the word already used in the Sex Discrimination Act. Presumably, this is to avoid any potential confusion that might have arisen if two different words had been used in the different limbs of the definition in the UK legislation. The EAT in Harvest Town Circle Ltd v Rutherford [2001] IRLR 599 has recently held that there is no difference for the purposes of indirect discrimination law between "substantially" and "considerably". An argument could be constructed that "substantially", when used in the Disability Discrimination Act, has been interpreted as meaning anything that is more than minor or trivial, and therefore, since that is the word used in the Directive, a prima facie case of indirect discrimination is raised by any provision, criterion or practice that has a disparate impact which is more than minor or trivial. Set against that, this does not appear to be the approach taken by the European Court of Justice in cases such as R v Secretary of State for Employment ex parte Seymour-Smith (EOR 84).
Reconciling different legislation
The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations mean that the statutory definition of indirect discrimination is different as between sex discrimination and race discrimination. This is both confusing and contrary to overall government policy.
The statutory definitions will be brought closer in line when the Race Discrimination Directive is implemented, no later than 19 July 2003. This defines indirect discrimination as occurring "where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary." The same definition is used in the Employment Framework Directive for discrimination on grounds of religion or belief, sexual orientation and age. The provisions on sexual orientation and religious discrimination have to be implemented by 2 December 2003, and member states have until 2 December 2006 to legislate on age.
Although more similar, however, the definition in the new Directives is not the same as in the Sex Discrimination Act as amended. This will now refer to that which "would be to the detriment" of a considerably larger proportion of women than men, whereas the test under the Directives yet to be implemented is whether persons are "put at a particular disadvantage" compared with other persons. On the face of it, "particular" suggests something or a lesser magnitude than "considerably larger".
The Government is likely to implement the Race Discrimination Directive early, in order to address these anomalies. To bring the definitions fully in line, however, would require parliamentary time to be given for primary legislation amending both the Race Relations and the Sex Discrimination Acts.
Discrimination against married persons
4. For s.3 of the 1975 Act there is substituted -
"Direct and indirect discrimination against married persons in employment field
3.-
(1)In any circumstances relevant for the purposes of any provision of Part 2, a person discriminates against a married person of either sex if -
(a)on the ground of his or her marital status he treats that person less favourably than he treats or would treat an unmarried person of the same sex, or
(b)he applies to that person a provision, criterion or practice which he applies or would apply equally to an unmarried person, but -
(i)which is such that it would be to the detriment of a considerably larger proportion of married persons than of unmarried persons of the same sex, and
(ii)which he cannot show to be justifiable irrespective of the marital status of the person to whom it is applied, and
(iii)which is to that person's detriment.
(2)For the purposes of subsection (1), a provision of Part 2 framed with reference to discrimination against women shall be treated as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite."
This provision on discrimination against married persons substitutes a new s.3 in the Sex Discrimination Act. The change in the definitions of direct and indirect discrimination is directly parallel to the provisions on discrimination on grounds of sex in s.1.
Burden of proof: employment tribunals
5. After s.63 of the 1975 Act there is inserted -
"Burden of proof: employment tribunals
63A.-
(I)This section applies to any complaint presented under s.63 to an employment tribunal.
(2)Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -
(a)has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2, or
(b)is by virtue of s.41 or 42 to be treated as having committed such an act of discrimination against the complainant,the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act."
The Regulations change the Sex Discrimination Act by requiring a tribunal to uphold a complaint of sex discrimination, in certain circumstances, unless the respondent can prove that he did not commit an act of discrimination against the complainant. The circumstances in which the burden of proof will shift are where the complainant "proves facts from which the tribunal could ... conclude in the absence of an adequate explanation" that the respondent has committed an act of sex discrimination that is unlawful under Part 2.
This implements Article 4 of the Directive, which requires member states to provide that when complainants "establish ... facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."
When the burden will shift
The Sex Discrimination Act has always set out a framework for the burden of proof to shift in a case of indirect discrimination. The new Regulations for the first time formally regulate the allocation of proof in a case of alleged direct discrimination on grounds of sex.
What are the "facts" that the complainant needs to prove in order for the burden of proof to shift in a case of direct sex discrimination? The Regulations adopt the traditional standard of a prima facie case: the complainant must offer evidence that is adequate to create an inference that the act in question was on grounds of sex if there was no evidence put forward by the other side. In other words, if the tribunal stopped the case after hearing the applicant's preliminary evidence, without hearing any explanation by the employer, is there sufficient evidence for it to conclude that there was sex discrimination?
That said, it is by no means clear what this will entail in practice. In the United States, there has been a vast amount of litigation on issues relating to the ingredients of a prima facie case, and it seems inevitable that a similar pattern will be followed here.
The leading case on proof is currently the Court of Appeal's decision in King v The Great Britain-China Centre (EOR 41). In this race discrimination case, Lord Justice Neill set out the principle that "a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation." In the recent decision of Anya v University of Oxford [2001] IRLR 377, Lord Justice Sedley explained that: "It should be made clear that, when Neill LJ refers ... to discrimination, he means it in its literal, not its objectionable, sense; that is to say, he is referring simply to a choice or a process of selection ... It is not unduly onerous, as has sometimes been suggested, to proceed from the simple fact of such a choice, if it is accompanied by difference in race, to a request for an explanation."
Does this mean that all it will now to take to shift the burden of proof in a sex discrimination case to the employer is for a woman to show that she applied for a job that a man got? There is much to be said for such an interpretation of the law. After all, it is the employer not the complainant that knows why the act complained was taken and, as Sedley LJ adds in Anya, in "any sensibly-run institution, the explanation will be straightforward".
With respect to Lord Justice Sedley, however, in a recruitment case it is doubtful that a showing that a man was offered the job for which a woman applied is likely to be regarded as sufficient, in the language of the Burden of Proof Regulations, to establish facts from which the tribunal could conclude in the absence of an adequate explanation that the employer discriminated on grounds of sex. At a minimum, before the burden shifts to the employer to disprove discrimination, it is likely that tribunals will require the woman to show that she met the stated qualifications for the job.
The law may go further. Some might think that before a tribunal could presume sex discrimination, in the absence of an explanation, the applicant should have to show that she not only met the minimum qualifications for the job, but that she was equally or even better qualified than the successful candidate of the opposite sex. Support for this view can be derived from the recent emphasis, in both UK and EC sex discrimination and equal pay law, on the need to compare like with like. As we point out in our report of Shamoon v Chief Constable of the Royal Ulster Constabulary (see EOR 99, p.46), if the statutory requirement that the relevant circumstances in the woman's case and the man's case have to be the same is treated as a prerequisite to making a complaint, this will greatly increase the evidence the applicant will have to offer in order to establish a prima facie case.
What happens when the burden shifts
The Government has consistently taken the view that the shift in the burden of proof is of no importance. The Cabinet Office guidance emphasises that the Regulations "do not in any way equate to an assumption of 'guilty until proved innocent'. If there is no 'prima facie' evidence of sex discrimination, the tribunal will dismiss the case as at present."
The guidance goes on to explain that once a prima facie case of sex discrimination has been established, "the burden of proof then shifts from the applicant to the employer to show that there is a non-discriminatory reason for their actions. In practice, tribunals have operated in broadly this way since a legal ruling in 1991 and we do not think it will make any significant difference to the outcome of cases." There is then a footnote that says: "UK tribunals already have an established practice of drawing an inference of discrimination if an employer fails to produce evidence that satisfies them that there has been no breach of the principle of equal treatment. House of Lords, Zafar v Glasgow City Council [1998] IRLR 36."
This echoes Ministerial statements when the Burden of Proof Directive was being adopted. Thus, in 1998, the then Minister for Employment, Welfare to Work and Equal Opportunities, Andrew Smith, said that: "Implementation of the Burden of Proof Directive will make very little difference to the way in which sex discrimination cases are in practice decided in the UK." Indeed, at one point, the Government was maintaining that no legislative change would be necessary to give effect to Article 4 of the Directive.
This view, in our opinion, quite simply does not accord either with the history of the case law or with current experience on the ground. The very ruling of the House of Lords in Zafar (EOR 77) was that the employment tribunal in that case misdirected itself in considering that it was bound in law to draw an inference of discrimination on racial grounds in the absence of any other satisfactory non-racial explanation for the differential treatment of the applicant by the employers. In so holding, the House of Lords resolved conflicting authority and explicitly said that the remarks of the EAT in Khanna v Ministry of Defence [1981] IRLR 331 and Chattopadhyay v Headmaster of Holloway School [1981] IRLR 487 to the effect that an inference "should" be drawn where the employer's explanation was unsatisfactory or inadequate "put the matter too high ... and should not be followed". Instead, the House of Lords approved the guidance given by Neill LJ in King v The Great Britain-China Centre, which says that if the tribunal considers the explanation to be inadequate or unsatisfactory it will be "legitimate" for it to infer that the discrimination was on racial grounds.
It is a far cry from it being it "legitimate" to draw an inference of discrimination to a tribunal being compelled by statute to draw that inference. That is what the Sex Discrimination Act will now require. So it can be seen that, far from following the standard laid down in King and Zafar, the Burden of Proof Regulations overrule these cases and reimpose the higher onus adopted by the EAT in Khanna and Chattopadhyay.
This is much more than a difference in terminology. It is of considerable practical importance. Whether a tribunal is compelled to draw an inference of unlawful discrimination where there is no satisfactory explanation by the employer, or is merely entitled to do so, can be a decisive difference in cases where the tribunal disbelieves or otherwise finds inadequate the employer's explanation for the conduct in question. Under the law until now, it has not been uncommon for employment tribunals to find that the employer had not provided an adequate explanation, but to attribute this to managerial incompetence or to other motives than unlawful discrimination. Indeed, the trend in the law, if anything, has been to emphasise that even where the explanation is inadequate, the tribunal needs to have some factual basis for drawing an inference that the ground for the treatment was sex or race, as the case may be. As Lord Justice Peter Gibson put it in Chapman v Simon (EOR 54): "A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion."
That will no longer be possible in a sex discrimination case. Put simply, previously there were two questions after a prima facie case was established: first, was there a satisfactory explanation for the primary facts and secondly, if not, was sex discrimination to be inferred? Now, there is only one question: has the respondent proven that he did not commit an act of sex discrimination?
Burden of proof: county and sheriff courts
6. After s.66 of the 1975 Act there is inserted -
"Burden of proof: county and sheriff courts
66A.-
(1)This section applies to any claim brought under section 66(1) in a county court in England and Wales or a sheriff court in Scotland.
(2)Where, on the hearing of the claim, the claimant proves facts from which the court could, apart from this section, conclude in the absence of an adequate explanation that the respondent -
(a)has committed an act of discrimination against the claimant which is unlawful by virtue of -
(i)s.35A or 35B, or
(ii)any other provision of Part 3 so far as it applies to vocational training, or (b) is by virtue of s.41 or 42 to be treated as having committed such an act of discrimination against the claimant,
the court shall uphold the claim unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act."
Regulations 6 and 7 apply the same principles relating to the shift in the burden of proof under Part 2 to employment-related cases heard by the county court (or sheriff court in Scotland) under Part 3. These include claims of discrimination by barristers in respect of pupillages, and any cases of discrimination in vocational training falling under Part 3.
Claims under Part 3 of the 1975 Act so far as it applies to vocational training
7. After s.66(3) of the 1975 Act there is inserted -
"(3A) Subsection (3) does not affect the award of damages in respect of an unlawful act of discrimination falling within s.1(2)(b)."
Regulation 7 inserts a new provision in the compensation sections under Part 3 of the Act, which make it clear that a county court or sheriff court has power to award damages in respect of an unlawful act of sex discrimination which relates to vocational training and falls within the new definition of indirect discrimination, whether or not the discrimination is intentional.
Consequential amendments of 1975 Act
8.-
(1)In s.5(3)(a) of the 1975 Act, for "s.1(1)" there is substituted "s.1(1) or (2)".
(2)In s.37 of the 1975 Act, for subsection (1) there is substituted -
"(1) In this section "discriminatory practice" means -
(a)the application of a provision, criterion or practice which results in an act of discrimination which is unlawful by virtue of any provision of Part 2 or 3 taken with s.1(2)(b) or 3(1)(b) or which would be likely to result in such an act of discrimination if the persons to whom it is applied were not all of one sex, or
(b)the application of a requirement or condition which results in an act of discrimination which is unlawful by virtue of any provision of Part 3 taken with s.1(1)(b) or which would be likely to result in such an act of discrimination if the persons to whom it is applied were not all of one sex."
(3)In s.65(IB)(b) of the 1975 Act -
(a)for "s.1(1)(b)" there is substituted "s.1(2)(b)", and
(b)for "requirement or condition" there is substituted "provision, criterion or practice".
(4)In s.82(1) of the 1975 Act, after the definition of "proprietor" there is inserted -
""provision, criterion or practice" includes "requirement or condition".
Regulations 8 and 9 are consequential amendments.
Amendment of Employment Act 1989
9. In s.1 of the Employment Act 1989{ a) (overriding of statutory requirements which conflict with certain provisions of the 1975 Act), in subsection (3)-
(a)for "requirement or condition", wherever occurring, there is substituted "provision, criterion or practice",
(b)for "subsection (l)(b)(i) of s.l or 3" there is substituted "s.1(2)(b)(1) or 3(1)(b)(i)",
(c)in paragraph (a), for "subsection (l)(b)(ii) of that section" there is substituted "s.1 (2)(b)(ii) or 3(1)(b)(ii) of that Act", and
(d)in paragraph (b), for "subsection (l)(b)(ii)" there is substituted "s.1(2)(b)(ii) or 3(1)(b)(ii)".
Workplace guidance on the Burden of Proof Directive: indirect discrimination
The Cabinet Office, Women and Equality Unit has prepared and published guidance on what the Burden of Proof Regulations will mean3.
3"Clarity in the Sex Discrimination Act", WEU01BOP, Cabinet Office. Available on the Cabinet Office website: www.cabinet-office.gov.uk or free from Prolog, PO Box 5050, Sherwood Park, Annesley, Nottinghamshire NG15 0DJ, tel: 0845 6022260, fax: 0845 6033360.
On indirect discrimination, the guidance says: "This is not a major change in the law, although it may have an impact in marginal cases. The former wording that a man or woman has been discriminated against unfairly if an employer applies an unjustifiable requirement or condition to both sexes has been interpreted narrowly by the courts. An applicant had to prove there was no physical way in which he or she could comply with a stated condition. The new wording removes this narrow approach by using the words 'provision, criterion or practice'. The applicant will still have to prove, for example, that an employer is applying a specific practice to their disadvantage but she will no longer have to prove that there was an actual rigid rule in place which was to her disadvantage."
The guidance then gives the following examples:
"A practice of preferring for recruitment or promotion people who have shown geographical mobility in previous jobs or posts (which would disadvantage more women due to their domestic responsibilities) could be indirect sex discrimination. If the employer has no evidence of an objective justification (eg if only voluntary moves have ever taken place) then the tribunal may find that no adequate explanation has been produced and will find in the applicant's favour.
A practice of not referring to management training courses people who work part time, either men or women, although not stating in the internal notices that someone must be full time. This is likely to impact more on women. If a woman currently working part time but aiming for full-time work shows that she was not considered seriously for the course, the tribunal will require the employer to produce a fully adequate explanation or to objectively justify such a practice."
Workplace guidance on the Burden of Proof Directive
Burden of proof
The Cabinet Office guidance says that: "Applicants will be able to bring both direct and indirect discrimination cases but the Regulations provide that in such cases the applicant has to prove less favourable treatment in comparison with someone of the other sex (direct discrimination) or to prove a detriment experienced because of a provision, practice or criterion which a considerably smaller group of one sex could meet (indirect discrimination). It is then for the respondent to seek to counter this evidence. In the case of indirect discrimination, the respondent may also provide evidence to show an objective justification for the provision, criterion or practice complained of. If an employer fails to prove that they did not commit the act complained of, the applicant will succeed and the tribunal must uphold the claim of discrimination. Having heard all the evidence made available at the hearing, the tribunal will decide the case on the 'balance of probabilities'.
In fact, this is, generally speaking, what happens already in practice in the UK. Tribunals have taken a common-sense approach, have expected the employer to provide evidence of a satisfactory alternative explanation, and have drawn an appropriate inference if they have been unable to do so. The Regulations make sure this practice is properly reflected on the face of the legislation. They do not in any way equate to an assumption of 'guilty until proved innocent'. If there is no 'prima facie' evidence of sex discrimination the tribunal will dismiss the case as at present."
The guidance then goes on to give the following examples:
"A woman is unsuccessful at a promotion board interview. She brings a claim that she was discriminated against unfairly because questions were asked at the interview which probed her commitment to the post, mentioning her young children. She has been informed by a male candidate that no similar question was put to him, although he has children of the same age. Without an adequate explanation from the employer as to what had occurred during the interview this is likely to convince a tribunal that there is a prima facie case to answer and the burden will fall on the employer to prove that there was no such discrimination.
The burden is still on the applicant to prove sufficient facts which would enable a tribunal to consider the burden had shifted to the employer. If the applicant is unable to do so, then the applicant will lose her case.
A woman employee claims that she was sexually harassed during an interview with a male manager and that he conducted the interview without another person being present. She can put forward no evidence of physical or verbal behaviour amounting to harassment then or previously but relies on the one to one interview as 'sexual intimidation'. The applicant has been unable to produce sufficient evidence which, without an adequate explanation, could constitute sex discrimination. Her case is therefore dismissed.
Note: There is no requirement in law nor is it considered necessary business practice to provide women employees with chaperones."
