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 imp