The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001

We look at the Regulations implementing the EC burden of proof Directive.

As we reported in IRLB 671, Regulations have been laid before Parliament to implement EC Directive (No.97/80) on the burden of proof in cases of discrimination based on sex.

The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001¹ ("the Regulations") come into force on 12 October 2001 and will have two main effects. Firstly, the burden on proof in actions brought by individuals under the employment and vocational training provisions of the Sex Discrimination Act 1975 ("the SDA") will formally be reversed. Second, the definition of indirect discrimination will be modified in such cases. In this feature, we look at the changes in more detail and consider the impact both on employers and employees.

Burden of proof

In most civil proceedings in England and Wales, the individual bringing a claim must prove his or her case in order to be successful. In other words, the burden of proof lies upon his or her shoulders. So, if the respondent remains silent and the claimant cannot bring sufficient evidence to prove his or her case on the balance of probabilities, the claim will fail. This general rule applies equally to applicants bringing claims under the employment provisions of the SDA. However, it has been recognised that applicants bringing discrimination claims face significant difficulties in finding supporting evidence.

In King v Great Britain-China Centre², Neill LJ stated that although it was for the applicant to make out his or her case, it was legitimate in some circumstances for a tribunal to infer from the primary facts that, in the absence of a satisfactory explanation from the employer, discrimination was on racial or sexual grounds. This guidance was endorsed by the House of Lords in Zafar v Glasgow City Council³. The House of Lords cautioned that a tribunal is not required to draw such an inference, and to make such a direction would be an error of law.

Thus, currently, the burden of proof lies on the applicant but, in practice, once the applicant has proved the primary facts, an employer that fails to give an explanation for its actions faces the real danger of the tribunal inferring that discrimination was on unlawful grounds.

The Regulations formally introduce a reversal of the burden of proof in these terms into the SDA. Section 63A(2) will state:

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.

Thus, although the applicant must still raise a prima facie case, the King guidelines have been given statutory force. However, the Regulations state that the tribunal "shall" uphold the complaint in these circumstances, which goes further than the House of Lords allowed in Zafar.

The burden of proof provisions will apply to ongoing proceedings that were commenced prior to 12 October 2001.

Indirect discrimination

Unlike the changes to the burden of proof, modifications to the definition of indirect sex discrimination may have more of an impact. In cases brought under the employment or vocational training provisions of the SDA, a new definition will apply. Currently, indirect discrimination is made out when an employer applies to a woman a "requirement or condition" that is applied equally to a man but 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", which is to the woman's detriment. Such treatment will not be unlawful if it can be objectively justified.

However, the new definition, using the language of the Directive, refers to "a provision, criterion or practice" which is such that "it would be to the detriment of a considerably larger proportion of women than of men". The applicant in question must also suffer a detriment. It remains open to the employer to justify its behaviour.

The term "provision, criterion or practice" is not defined, other than to state that it includes a "requirement or condition" (inserted into s.82(1) of the SDA by reg. 8(4)). The term seems on its face to be considerably wider than the current test and much will depend on how the courts and tribunals interpret the word "practice". Although evidential difficulties may well arise, it would seem that informal work practices both during the employment relationship and in recruitment would fall within the scope of the new definition.

This reading is supported by the need for the provision, criterion or practice to be to the detriment of a considerably larger proportion of women than of men. Because there is no need for an absolute condition, the test cannot be framed in the context of compliance or otherwise.

Different tests

When the Regulations come into force, the tests for race and sex discrimination in the employment field will part company. The stricter test of indirect discrimination will apply under the Race Relations Act 1976 and the burden of proof in race cases will continue to be governed not by statute but by King and Zafar.

¹SI 2001/2660

²[1991] IRLR 513

³[1998] IRLR 36