Sex discrimination cases will be harder to defend when the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 come into force on 12th October.
The new regulations make claims of indirect sex discrimination easier to win as women no longer have to show that the relevant (discriminatory) requirement or condition is to her detriment "because she cannot comply with it". In future a woman simply needs to show that the requirement or condition is to her detriment. This means that some claims which, historically, have been unsuccessful (because the tribunal has concluded that the woman can in fact comply with the requirement) will now succeed. For example, in the past some tribunals have concluded that although a requirement to work full time may be to a mother's detriment the fact that the particular mother is well paid and can afford the necessary childcare means that, in practice, she can comply with it. Now all a woman need show is that the requirement is detrimental to her family commitments.
The new regulations also change the burden of proof in tribunal proceedings. In future the burden of proof will shift from the complainant to the respondent if the complainant can prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that discrimination has occurred. This means that once a complainant has made a prima facie case of discrimination the burden is now on the employer to disprove that discrimination. This change has caused some controversy - with some commentators arguing that this breaches the principle that a defendant is presumed innocent unless proved guilty. However, the Sex Discrimination Act already requires the employer objectively to justify a practice or procedure which would otherwise amount to indirect sexual discrimination and in our view there will be little change in this respect from the existing position under case law. Employers must take extra care that they can give a clear non discriminatory reason whenever men and women are treated differently.
If you require further information about the changes in the law or have any questions about sex discrimination, please contact Anthony Fincham by telephone on +44 (0)20 7367 2783 or by e-mail at anthony.fincham@cms-cmck.com or Simon Jeffreys by telephone on +44 (0)20 7367 3421 or by e-mail at simon.jeffreys@cms-cmck.com.
