Tighten up policies to avoid inadvertent bias

New regulations could make it harder for employers to defend direct and
indirect sex discrimination complaints

One of the main problems faced by workers who believe they have been
discriminated against on grounds of sex, race or disability is establishing
proof. Clear evidence of blatant bias by an employer or potential employer is
usually difficult to come by, and in any event most unlawful discrimination is
subconscious.

This difficulty has been acknowledged by numerous court and tribunal
decisions over the years, and was confirmed by the House of Lords in the race
discrimination case of Zafar v Glasgow City Council, 1998, IRLR 36. Here, the
Lords confirmed that, where an applicant puts forward evidence indicating
unlawful prejudice, the tribunal will look to the employer for an explanation.
If the employer provides an inadequate or unsatisfactory explanation, the
tribunal may infer unlawful discrimination and uphold the claim.

Next month, the point is to be emphasised still further, at least so far as
sex discrimination claims are concerned, by amendments to the Sex
Discrimination Act 1975 (the SDA). On 12 October, regulations based on the 1998
European directive on the burden of proof in sex discrimination cases come into
force (nearly three months after the UK’s implementation deadline).

The Sex Discrimination (Indirect Discrimination and Burden of Proof) regulations
2001 provide that, where an applicant establishes a prima facie case of sex
discrimination at work, the burden of proof shifts to the employer to prove
that there was no such discrimination. In due course, similar changes are
likely to be made to the Race Relations Act 1976 (the RRA) and possibly the
Disability Discrimination Act 1995.

The amendments may provide some impetus for more people to pursue claims of
direct discrimination under the SDA, although they arguably merely codify the
approach already taken by tribunals. The Workplace Guidance on the Burden of
Proof directive published by the Cabinet Office suggests that, above all,
employers should ensure records are kept up to date. "A paper trail
documenting ‘who did what, when, how and why’ will be crucial to a robust
defence" in a claim of direct sex discrimination, the guidance says.

Indirect discrimination

As the title of the new regulations suggests, they also deal with indirect
sex discrimination in employment – that is, where apparently neutral behaviour
by an employer has in fact had an adverse impact on one sex that cannot be
justified.

The original wording of the SDA said that employers committed unlawful
indirect discrimination if they applied an unjustifiable "requirement or
condition" that impacted unfavourably on one sex. The phrase
"requirement or condition" was interpreted restrictively by the
courts, most notably in cases brought under the identical wording in the RRA.
For example, in Perera v Civil Service Commission, 1983, IRLR 186, it was held
that knowledge of the English language was not a requirement or condition for a
particular post because it was not a "must" for being selected.

The wording substituted by the new regulations is more flexible, covering a
"provision, criterion or practice" that operates to the disadvantage
of one sex. So a female employee will no longer have to prove there was a rigid
rule in place that was indirectly discriminatory. For example, if an employer
displays a "preference", rather than an absolute requirement, for
recruiting or promoting people who have shown geographical mobility in previous
posts – which would disadvantage more women than men due to their domestic
responsibilities – that would amount to indirect sex discrimination unless the
employer could justify its policy.

Key points

– The relaxation of the SDA definition of indirect discrimination is the
most significant aspect of the new regulations.

– Review recruitment, training, promotion and dismissal practices to make
sure inadvertent sex discrimination is not occurring.

Gareth Brahams is a senior solicitor in the employment department at
Lewis Silkin

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