For employers, direct sex and race discrimination is defined as less
favourable treatment to an employee on the ground of their race or sex.
Employers could be forgiven for thinking, therefore, that if the employee
concerned cannot show less favourable treatment on these grounds, the employer
will not be liable in a discrimination case.
But it is the employer who has to make most of the running in such a case.
This is because, for many years, tribunals have recognised the fact that
evidence of direct discrimination is hard to come by. Tribunals are therefore
able, if they feel it is justified, to draw inferences of direct discrimination
from findings of fact which they make, if there is no good reason otherwise for
the treatment occurring.
Tactics in discrimination cases
A well-advised individual bringing a claim based on direct race or sex
discrimination will, in addition to seeking to lead evidence of actual
discriminatory treatment, be seeking to put before the tribunal as much
information as possible which might give rise to an inference being drawn in
his or her favour. A good way of doing this is to issue a statutory
questionnaire to the employer which, in addition to setting out the grounds for
the alleged unfavourable treatment, gives the individual an opportunity to ask,
on the record, for significant amounts of statistical and documentary evidence.
An employer can expect to be asked about its equal opportunities policy,
steps taken to implement to the policy, the level and quality of training in
equal opportunities given to senior managers and a variety of questions seeking
to obtain statistical evidence that, in fact, one sex or race is not treated as
favourably as another. In this way, the use of a statutory questionnaire can
highlight all sorts of information which, although not necessarily pinning
liability on the employer, can provide the context in which inferences
concerning discrimination can be drawn by tribunal members at the hearing.
Although there is no time limit for responding to a statutory questionnaire,
failure to do so can itself cause a tribunal to draw an inference as to why an
employer would be so coy. In this way, an employer can be put to a considerable
amount of work in order to rebut any contention that discriminatory practices
are taking place.
Equal opportunities policies
As is the case with sexual harassment, it is important not only to have an
express policy on equal opportunities but to ensure that the policy is
continually monitored and implemented. Again, such information may be relevant
to rebutting an inference of discrimination.
It is unlikely, however, that vicarious liability can be avoided in this
area. Any unlawful act, other than a criminal offence, committed by an employee
in the course of his or her employment, is treated as also having being done by
the employer – whether or not it was done with the employer’s knowledge or