Reversal of fortune

The European Burden of Proof directive, which is to be implemented next
year, will make it much harder for employers to defend allegations of
discrimination. By Patricia Leighton

When surveying the topic of equality of opportunity at work, two facts stand
out. The first is continuing evidence of discrimination and disadvantage
suffered by various groups in the labour market. The second is the failure of
the law, as presently constructed and applied, to redress disadvantage. The
statistics on equal pay, or lack of it, are illustrative. According to research
undertaken for the European Parliament, aside from the Nordic countries,
comparative female earnings are typically in the 70-75 per cent range. The UK
is in this group (73 per cent) and is low on an EU league table. This is so
despite a quarter of a century of equal pay legislation, some important case
law, significant activity by the European Court of Justice and wide media coverage.

Other research indicates a continuing or even worsening position for members
of ethnic minorities. For example, in 1992 some 30 per cent of white employees
were reported as being in managerial or supervisory posts compared with 25 per
cent of black employees. By 1999 the latter figure had fallen to 24 per cent.

There are also reports of greater difficulties for black workers in gaining
access to full-time work, training and subsidised work schemes such as the New

Discrimination hard to prove

This picture persists despite huge investment, not only in law and legal
remedies, but also in significant policy development at workplaces. An Equal
Opportunities Review survey of over 1,000 leading employers undertaken in
July-August 1999 provides evidence of the type of changes at organisational
level to support equality of opportunity. All but five per cent of respondents
had an EO policy and most had some form of flexible working or family-friendly
initiatives and had made some adjustment to discipline, grievance and other
detailed policies.

Fewer systematically monitored policies or set targets. We also have in the
UK some long established organisations to promote equal opportunities (the EOC,
CRE and now the DRC) with experienced staff and helpful codes of practice,
reinforced by initiatives by major professional bodies such as the CIPD.

So the law has been around for 25 years, cases have been fought and won and
there has been huge investment in awareness-raising, education, policy
development, research and initiatives at individual employing organisations,
especially in the public sector.

But how easy is it to win a discrimination claim? Many successful claims hit
the press, but in reality these are a small minority of contested cases. The
success rate has fluctuated over the years but is rarely above 20 per cent.
Recent research on the Disability Discrimination Act 1995 shows a success rate
of 17 per cent, with women less likely to win than men and a particularly low
success rate for claims alleging discrimination in recruitment and promotion.

Research on disability (along with for race and sex) discrimination suggests
that a major stumbling block for claimants is the burden of proof which
requires them to establish discriminatory behaviour or less favourable
treatment. The law and procedures are often seen by claimants as complex and

The need to obtain relevant evidence – documents and witnesses – and use
them effectively is often an insurmountable hurdle. Managers and colleagues are
generally reluctant to give evidence against their employers; the claimant may
be unaware of key memos and conversations. Information is clearly available to
claimants but is of no avail if they do not know of its existence.

It was to address these problems and thereby achieve a higher success rate
in claims that the European Directive on the Burden of Proof (97/80/EC) was
adopted. It should be implemented on 22 July 2001 in the UK. Its importance is
reinforced by the 1999 draft Framework Directive on Equal Treatment in
Employment and Occupation which will require equal treatment of workers
regardless of sex, racial or ethnic origin, religion or beliefs, disability,
age or sexual orientation.

The key provision of the Burden of Proof directive has the following effect:

Where there is "adverse impact on one sex" it is for the employer
to prove that the "provision, criterion or practice is appropriate and
necessary and can be justified by objective factors unrelated to sex".

Many commentators see this as both a logical and dramatic change. In
practical terms, it means a claimant can ask for key workforce data, for
example, relating to pay, career structures, composition of various groups,
such as middle and senior management or composition of atypical or precarious
work patterns. If the data, especially when compared with data for comparable
organisations or national statistics, raises an inference of less favourable
treatment for women (or Muslims or Protestants or, say, older workers in the
future), the responsibility will pass to the employer to justify the situation.
The justification has to be on the basis of "appropriate" and
"necessary" objective factors. It is assumed, but not entirely clear,
that the provision should be "appropriate" and "necessary"
for the employing organisation.

Initially, of course, the directive will only apply to men and women.
However, it is likely that within two to three years the other groups in the
draft framework directive will be covered. It is also likely that the impact on
sex discrimination claims will be significant, especially in claims regarding
promotion, pay, training and development where statistics have an obvious role
to play. It is not so easy to predict the impact on sexual harassment claims,
where it is less likely that a preliminary influence of adverse impact on one
sex can be drawn.

Inference of discrimination

The idea of an inference of discrimination is not new to UK law. Race
discrimination case law indicates that on occasions, but not necessarily, a
tribunal has been willing to look at workforce data or other evidence and infer
prima facie discrimination. The difference is they will be bound to do so with
the new directive.

Further, we are familiar with the ideas of "pools" for comparative
purposes in indirect discrimination. The law here has been complex; the
approach of the directive should both open and simplify it. In effect, just as
with the directive, the onus has passed to the employer to justify a "provision,
criterion or practice" which may account for the apparent distortion. What
might that be? So long as reasons are objectively justified and are seen as
necessary and appropriate practices it is likely that market forces arguments
relating to skills shortages will still be effective in terms of pay claims.

However, employer arguments that have been recently accepted in cases such
as Marshall v Glasgow City Council – that distortions were unconnected with sex
and therefore there was no need to go on to justify practices – may not be
successful in the future. If the workforce data reveals an imbalance, for
example, the tribunal will want to hear why the situation has come about or is
being maintained. This must be an early issue at hearings.

Decisions must respect policy aims

The interesting questions arise over the continuing success or otherwise of
arguments based on organisational or economic factors. It may be possible to
argue the need for continuity of team members, restriction of corporate
knowledge or plans, respect for client preferences; that the costs of human
capital investment are such that there is little place for change, or that the
claimants do not typically want promotion, pensions, management training or

However, caution must be expressed in the light of our experience of
implementing European directives and challenges to that. European case law
consistently stresses the need for the policy objectives of European directives
to be respected in tribunal adjudication.

Here, the policy objectives are in effect, to make it easier to bring and
win equality claims, coupled with the need to tackle deep seated and structural
reasons for inequality which are so often the basis of
"justifications". For example, the need to pay more to a previously
highly paid man in order to tempt him to your organisation.

Finally, this law should be looked at in conjunction with the Human Rights
Act 1998 and the Data Protection Act 1998, both of which restrict the ability
of an employer or potential employer to probe individuals’ personal and private
lives. The practical effect will be to force all employers to focus on the
absolute basics of jobs and careers.

The more the emphasis is on qualifications, experience and skills in most
aspects of HR practice, the better.

Professor Patricia Leighton is head of law at Manchester Metropolitan

Burden of proof – the practical implications 

– You must develop and maintain accurate workforce data.

– You must systematically monitor and question that data and, if distortions
are apparent, work to redress them. This will perhaps require action to change
recruitment and selection procedures, and explore the workings of performance
pay and similar schemes, especially in terms of their application to atypical
groups as well as to men and women.

– You must be absolutely sure of the facts in any "justification"
argument. If, for example, it is argued that part-timers or older workers do
not want to join a pension scheme and this is what explains their exclusion,
the assertion will need to be backed up with hard evidence. Similarly, for
"market forces" arguments you must possess the hard evidence
regarding, say, the need to pay a man a higher rate than existing female staff.

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