As well as the Part-Time Workers regulation implementing European directive (covered 6 June), there are two further directives which the UK has to implement by July 2001 – the Reversal of Burden of Proof in sex discrimination cases (97/80/EC) and the directive on Fixed-Term Work (99/70/EC). In both cases, the DTI has confirmed that it plans to initiate a consultation exercise on implementation, but it has not yet given a commencement date. From previous experience, this is not likely to be until early 2001.
The Burden of Proof directive
The general aim of the Burden of Proof directive is to make the Equal Treatment directive more effective. It seeks to ensure “the absence of any discrimination based on sex, either directly or indirectly, particularly by reference to marital or family status”.
The current burden of proof position in English law is that the applicant must raise a reasonable case of discrimination, with the onus initially on her – as the applicant in these cases is usually a woman – to provide sufficient statistical and/or factual evidence to establish a prima facie case. This places a significant burden on the applicant. However, once this has been done, the tribunal will then look to the respondent employer to establish that an act of discrimination has not taken place. If the respondent employer fails to demonstrate this, then it will almost certainly lose the claim.
It is also well established in English law that tribunals may draw inferences of discrimination from facts established by the applicant in making her prima facie case, where it is reasonable to do so. A finding of discrimination can, and often is, based on inferences alone.
The impact of the new directive will not be huge in the UK since it obliges Member States to take necessary measures to ensure that it is for the respondent employer to prove there has been “no breach of the principle of equal treatment”. The implementing legislation will therefore confirm and possibly strengthen the current case law position, and make it clear in practice that the employer has to do all the running in these cases to avoid a finding of discrimination. However, having to introduce implementing legislation for this directive will also highlight the onus on employers in these cases and could encourage applicants who might otherwise be reluctant to bring a claim of sex discrimination, thus increasing the current relatively low level of sex discrimination cases.
The Fixed-Term Work directive
This has been adopted at European level due to the perceived abuse of fixed-term contracts by employers. It establishes a principle that fixed-term workers will not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract, unless different treatment is justified on objective grounds.
It also makes it clear that period of service qualifications should be the same for fixed-term workers as for permanent workers unless, again, justified on objective grounds. The implementing legislation should discourage the use of renewing fixed-term contracts and impose a maximum total duration of fixed-terms contracts and a number of renewals. The directive also talks about facilitating moves to permanent employment for fixed-term workers, involving them in training and staff consultation.