The law of sex discrimination is on the march again. Propelled by a European Directive (97/80/EC) the Government has introduced the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 (SI 2001/2660). They came into force on October 12, 2001, some nine months after the implementation date required by the Directive.
Definition of indirect discrimination
The Regulations have inserted into the Sex Discrimination Act 1975 a new definition of indirect discrimination in employment and certain other cases. Although some of these changes appear to be highly technical, they are in practice likely to have a significant impact. In broad terms, under the old definition, in order for a woman to succeed in a complaint of indirect sex discrimination, it had to be shown that:
the employer applied to her a “requirement or condition”;
the proportion of women who could comply with that requirement or condition was “considerably smaller” than the proportion of men who could comply;
that requirement or condition was not justifiable; and
it was “to her detriment because she cannot comply with it”.
The new law makes three changes to this definition.
Firstly, “requirement or condition” has been changed to “provision, criterion or practice”. This change is likely to be important. Take for example external recruitment exercises where the employer draws up a list of criteria which are either essential or desirable. An unsuccessful female applicant complains that one of the desirable criteria was indirectly discriminatory against women. Under the old law, the criterion had to be demonstrated by the woman to be a “must-have”, ie an absolute bar. However, now the focus will be shifted onto the justifiability of the desirable criterion.
Secondly, in order for a complaint of sex discrimination to succeed, the provision, criterion or practice must now be “to the detriment of a considerably larger proportion of women than of men” [emphasis added]. This is often known as “disparate impact”. Cynics might think that this change is unlikely to produce a different outcome from the previous wording, “the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it” [emphasis added]. In fact, the real battle lines may well be drawn over the way in which statistics are prepared and presented in sex discrimination cases. The latest word on this topic is Harvest Town Circle Ltd -v- Rutherford  IRLR 599, EAT. In cases where disparate impact is not immediately obvious, the EAT endorses the approach of using more than one form of comparison none of which are necessarily to be regarded as decisive. In such cases, a tribunal is entitled to look not merely at proportions, but also at numbers, both disadvantaged and non-disadvantaged groups, and even to the respective proportions in the disadvantaged groups expressed as a ratio of each other.
Thirdly, the definition of detriment has changed. A woman no longer needs to demonstrate that the employer has applied to her something which is to her detriment “because she cannot comply with it”. She now need only demonstrate that it is “to her detriment”. This means that the endless arguments over whether a woman was or was not able to comply with a particular requirement of an employer are over. Instead, there are likely to be various cases exploring the meaning of the word “detriment”. Up until recently the view has been that detriment simply means “putting under a disadvantage” or “where a reasonable employee could justifiably complain about his or her working condition or environment”. However, in Lord Chancellor v Coker  IRLR 116 the EAT held that on its correct construction “detriment” requires some physical or economic consequence. This approach was adopted by the Northern Ireland Court of Appeal in Shamoon v Chief Constable of Royal Ulster Constabulary  IRLR 520. It is unlikely that this tougher definition will be adopted. Therefore, in Garry v Ealing LBC  IRLR 681 the Court of Appeal held that the applicant was “entitled to say that it was detrimental to her in the sense that she was disadvantage in the circumstances in which she had thereafter to work” (para 35). Also, it is not without significance that the Court of Appeal in Coker  EWCA Civ 1756,  All ER (D) 334 (Nov) declined to express any view on whether the EAT had adopted the correct approach to detriment (para 51).
Burden of proof
The Regulations have altered the burden of proof in Employment Tribunals and in county and sheriff courts. It has done this by inserting new ss 63A and 66A into the Sex Discrimination Act. They are both in similar terms, “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 [has discriminated] 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.”
It is not entirely clear that this burden of proof provision will alter the practice in tribunals or courts. Previously, where a woman had made out a prima facie complaint of unlawful sex discrimination, a tribunal had required a respondent to give an adequate explanation, or it would very likely draw an inference of discrimination. This was the approach in King v Great Britain China Centre  IRLR 513. However, one unintended side effect of this change may be that respondents in tribunals feels sufficiently bold to make more frequent submissions of no case to answer after the applicant’s evidence has concluded.
The new burden of proof sections, but not the new definitions of indirect discrimination, are retrospective. The Regulations provide that the burden of proof sections “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”. It is probably only a matter of time before lawyers for complainants try to re-open cases decided against their clients, by arguing that those case were not “determined” before October 12, 2001. Paul Epstein, Cloisters, Pump Court in
“New Law Journal” December 21, 2001