In on the act: Indirect Discrimination and Burden of Proof Regulations

Our continuing series of quick guides to major employment legislation puts
key information at your fingertips and brings you up to date with the latest
developments. This week Jane Brown, senior solicitor with the employment team
at Manches, looks at changes to sex discrimination law, with the recent
introduction of the Indirect Discrimination and Burden of Proof Regulations

Most employers are all too familiar with the provisions of the Sex
Discrimination Act 1975 (SDA). However, not everyone will be as well acquainted
with the recent changes to sex discrimination law in the Sex Discrimination
(Indirect Discrimination and Burden of Proof) Regulations 2001 (the Regulations),
which came into force on 12 October 2001 and implement the EC Burden of Proof

Since it is principally women who benefit from the sex discrimination laws,
this article will refer to them as the claimants, although of course the law
also applies to men.

A common area where the SDA applies is where an employer turns down a
request from a female employee with young children to work part-time. She can
usually show that the requirement to work full-time adversely affects more
women than men, since women are more likely to be primary carers for children.
Even so, a woman still has to satisfy several criteria before she can prove she
has been discriminated against, but these have been relaxed by the Regulations.

Indirect discrimination

Prior to the Regulations, indirect discrimination was defined as occurring
where an employer applies a requirement or condition to a female employee which
it applies equally to men, but is such that:

– The proportion of women who can comply with it is considerably smaller
than the proportion of men

– The employer cannot show it to be justifiable irrespective of gender

– It is to the employee’s detriment because she cannot comply with it

Relaxed test

The changes introduced by the Regulations should make it easier for
employees, by removing the following two hurdles:

Requirement or condition

Under the Regulations, an employee needn’t prove a requirement or condition
has been applied to her. All she has to show is that her employer has applied a
‘provision, criterion or practice’. Women will undoubtedly find it easier to
satisfy this test by challenging non-contractual practices, such as a long
hours culture, or recruitment criteria which are desirable but not essential.


A woman no longer has to show she cannot comply with the ‘provision,
criterion or practice’ – she only has to show it is to her detriment. Again,
this will make it easier to prove discrimination.

If an employer refuses a request from a woman with young children to move
from full-time to part-time work, for example, she will have to demonstrate
that working full-time is to her detriment, but she will no longer have to show
she could not comply with it.

In the past this has proved an obstacle to bringing a successful claim for
high-earning women. For example, in Sykes v JP Morgan (unreported), the
tribunal said that because Sykes could afford childcare, she could comply with
the requirement to work full-time (although this case is being appealed).

There is still a ‘get out of jail’ card for employers, however. Under the
Regulations, as previously, even if an employee manages to prove that
discrimination has occurred, the employer can still defeat her claim by proving
the discrimination was justified. In the example of a woman with children
requesting part-time work, the employer would need to demonstrate why the job
cannot be done on a part-time basis.

Burden of Proof

Until now, employment tribunals have had some discretion over the question
of whether inferences of discrimination should be drawn in cases where the
employer has not provided an adequate explanation for its behaviour.

The Regulations have amended the SDA so that where an employee has
established facts which point to discrimination, tribunals are now obliged to
infer discrimination unless the employer can prove otherwise.

At first sight it may look as if this is not a significant change – this is
certainly the view the Government takes in its guidance to the Regulations.
However, there is an important difference, since the Regulations require the
tribunal to find for the employee if it has not been convinced by the
employer’s answer. In the past (for example in Sidhu v Aerospace Composite
Technology, 2001, ICR 167 (CA) tribunals have not always so found because they
have had absolute discretion in this respect.

A further development

From April 2003, legislation is due to provide both mothers and fathers of
children under six (or of disabled children under 18) with a legal right to
request flexible working hours.

Workers will be entitled to a full explanation in writing from an employer
who chooses to reject such a request, with a right, as a last resort, to go to
an employment tribunal. This will be separate from and in addition to any
rights under the SDA.


It is becoming easier for employees to bring discrimination claims. This
means employers must deal carefully with requests for part-time work from
female employees, in particular, and it is likely their only hope will be to
rely on justification arguments.

Decisions concerning recruitment, promotion, requests for part-time work and
so on, must also be handled and documented scrupulously. If not, employers face
costly discrimination cases.

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