Indirect sex discrimination claims have become much more common in recent
years, often focusing on the issue of whether or not it is lawful to insist
women continue to work full-time after returning from maternity leave. The
issues which employers should consider in these circumstances were set out in a
previous Letter of the Law (3 July). The legal situation has, however, now
changed significantly in two ways as a result of the introduction of the Burden
of Proof Regulations on 12 October.
The new rules
First, the definition of what women need to show, in order to get a case off
the ground, has altered. Previously, the rule was that a woman had to point to
a "requirement or condition" which impacted more on women than men.
This meant providing evidence of a particular stipulation being made by the
employer. Women now only need to point to a "provision criteria or
practice", which could be anything the employer does, promotes or even
allows, whether or not it is a stipulation as such.
It has been reported, for example, that simply having a long-hours working
culture – usually an unwritten but understood thing – may now provide the basis
of an indirect sex discrimination claim, since it is likely that statistically
fewer women are able to comply with it than men, due to their greater childcare
On a more specific level, others have suggested that entertaining clients on
the golf course might be a practice which rules women out of certain
opportunities, since golf is predominantly a male sport. If this is the case,
then one should add in all other male-dominated promotional or client
entertainment activities. Marketing departments take note! Purely unisex events
only (horse racing perhaps) may be the norm.
The other major change helping women is the dropping of the requirement that
the claimant needs to show that she cannot comply with what was previously a
requirement or condition, and is now a provision, criteria or practice. In
other words, all she needs to show now is that such a provision, criteria or
practice is to her detriment, even though in fact she could comply with it if
she absolutely had to.
These changes, taken together with the recent general change in the burden
of proof in sex discrimination cases (dealt with in 30 October’s Letter of the
Law) means it is much more likely now for employers to receive claims of this
sort. More than ever, employers need to look very carefully to see whether they
have adopted a non-sexist approach, and perhaps act positively, rather than
negatively in promoting forms of diverse working within the workplace. With the
"downturn" well under way, such an approach could also pay dividends
in terms of reducing costs.