In the DfEE’s consultation document, Towards Equal Pay for Women: Speed and simplicity in tribunal cases and the Burden of Proof Directive, the Government makes the following proposals. The deadline for responding to this consultation document is 19 February 2001.
Equal pay: Summary of proposals
Proposals 1-6 are designed to speed up and simplify tribunal cases:
Proposal : We propose, when legislative time permits, to introduce a questionnaire as used in other areas of discrimination with a time limit of say, eight weeks, for the employer to respond. In the interim we propose to explore with the EOC introducing a voluntary questionnaire.
Reason: Too often the key facts of a case are unclear or slow to emerge. A questionnaire could pave the way for establishing the necessary evidence from both parties and could lead to settlement in some cases.
2 Simplifying multiple cases
Proposal: We intend that in multiple cases the tribunal should require just one application (IT1 form) and one response from the employer (IT3 form) by enabling other applicants to be listed as a schedule to these forms.
Reason: Where a number of cases are essentially the same requiring separate forms is overly bureaucratic. This proposal would streamline the handling of such cases.
(The Department of Trade and Industry (DTI) intend to press ahead with this change in the New Year.)
3 Removal of “no reasonable grounds” defence
Proposal: We propose to remove, via regulations, the current power which enables a tribunal to dismiss a woman’s claim on the basis that, in its opinion, it has “no reasonable grounds” to presume it would succeed. In future, a tribunal would either have to consider the claim itself or appoint an independent expert to consider it.
Reason: This defence has been criticised as perpetuating stereotyped assumptions about the apparent value of traditionally “female” jobs. It should be noted that tribunals already have over-riding powers for dealing with weak cases.
4 Appointment of a qualified “Assessor”
Proposal: We propose when legislative time permits, where the tribunal has decided to determine an equal value case itself, to permit it to appoint an “assessor” to sit on the tribunal as a formal expert adviser.
Reason: Although the tribunal can determine a case itself, in many cases some expert input is needed and an independent expert is appointed, giving the risk of delay. This proposal could significantly increase the number of cases determined by the tribunal itself thereby speeding up the process.
5 Limit on hearing expert evidence
Proposal: We propose that where the tribunal has decided to appoint an independent expert, it should be limited to hearing expert evidence only from the independent expert by:
- encouraging the parties’ agreement to the selection of a single independent expert; and (in cases where this had not happened);
- limiting the parties’ right to call evidence challenging the expert’s report by removing the right to call their own expert witness.
But we also seek views on whether a safeguard is necessary given special circumstances in a case.
Reason: Delays are often caused by the parties in a case calling their own expert evidence in addition to the independent expert’s report. This proposal should enhance the status of the independent expert and increase the co-operation of the parties. The independent expert will still be able to be cross-examined by both parties.
6 Removal of unnecessary detail to rules in Equal Value Cases
Proposal: We propose to remove the unnecessarily detailed rules in Schedule 2 (Complementary Rules of Procedure for Equal Value cases) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 (and equivalent Scottish Regulations).
Reason: Schedule 2 is long and repetitive. Those rules specific to equal value cases can be shortened and simplified. This would make the process more user-friendly.
Proposals 7-8 have been developed in response to rulings of the European Court
7 Relaxation of the two-year limit on back pay in equal pay cases
Proposal: We propose that the two-year time limit on back pay in equal pay cases should be replaced, via regulations, with a time limit in line with limitation periods already provided in relation to contractual matters – six years from the date of the commencement of proceedings in England and Wales, but five years in Scotland.
Reason: To reflect a European Court ruling that the two year time limit is unfair and can deny a woman the full amount underpaid.
8 Extension of protection to former employees
Proposal: We propose, via regulations, to enable tribunals to consider claims about sex discrimination taking place within six months of the end of employment. We also propose to enable tribunals to consider claims about discrimination taking place after this period if it is just and equitable, and to provide a set of factors for the tribunal to take into account when considering whether it is just and equitable.
Reason: To reflect a European Court ruling banning discrimination and victimisation which happened after the woman left her job, where the Court says the Sex Discrimination Act should allow a claim.
OTHER ISSUES ON EQUAL PAY CASES
Ministers welcome the current approach of employment tribunals in using their discretion to hold direction hearings in most equal pay cases. They are an ideal opportunity for collecting early information about job descriptions and for setting a timetable for key stages in a case. Where appropriate, the independent expert should be present at a directions hearings when a timetable for producing the expert report could be fixed. The list of independent experts might need to be extended and we propose to invite ACAS to do this.
Losing or settling equal pay cases provides an employer with the opportunity to put things right by taking steps to prevent similar situations. ACAS can already help by working with employers and employees whether or not there has been a tribunal case.
We would welcome comments on how employers might be encouraged to take broader remedial action when unequal pay is identified by legal action.
Burden of proof: Summary of proposals
1. We think the Sex Discrimination Act (SDA) 1975 needs amending to make clearer that certain recruitment and employment practices can be discriminatory.
2. The Burden of Proof Directive (EC97/80) was agreed in Europe under the Social Chapter in 1997, and adopted by the UK shortly afterwards. The Directive is about the way sex discrimination claims are handled, and must be implemented in the UK by July 2001.
3. There are two themes to the Directive: the definition of indirect discrimination, which is often harder for both employer and individual to perceive and guard against than direct discrimination; and the sharing of the burden of proof, which concerns the way a Tribunal looks at the evidence.
4. Definition The Directive refers to disadvantage due to a “criterion, provision or practice”, based on a number of important European rulings on sex discrimination cases. This is a broader definition than the SDA’s “requirement or condition”.
6. A practice of preferring for promotion people who had shown geographical mobility in previous jobs (which would disadvantage more women primarily due to their domestic responsibilities) could be sex discrimination unless the employer had a good justification unrelated to sex.
7. Sharing the burden of proof: In cases where the claimant has made a prima facie case, and therefore fulfilled their part of the burden of proof, it will be up to the respondent, who is normally the employer, to disprove the claims. We think this is fair, because generally an employer will keep records which will allow him or her to explain why he or she did something, and if the reasons were not discriminatory, to show what the real reasons were.
8. Not all discrimination is direct or the result of deliberate prejudice. But employees who believe they have suffered sex discrimination may well have difficulty in successfully bringing a claim because, for example, they do not have sufficient information about their employers’ actions. We think that the SDA needs to be made clear, so that claimants and respondents understand the things that they might be asked to prove in a tribunal.
9. Implications: Under the Equal Pay Act it already falls to the employer to show there has been no sex discrimination if pay differs between men and women doing essentially the same job (or one of equal value) so we do not propose any changes to that Act. And the switch in the burden of proof is in line with the way in which discrimination cases are already handled and decided in the UK.
- We think the Sex Discrimination Act 1975 will be clearer if amended so it refers expressly to “direct discrimination” and “indirect discrimination” because it currently does not.
- We also intend to introduce the word “practice” which will broaden the definition of indirect discrimination.
- We will clarify where the balance of the burden of proof lies.
10. The changes would only apply to employment and vocational training, not to the parts of the SDA dealing with discrimination in the sale of goods and access to facilities and services. Also, we are not going to cover absolutely every situation where there happens to be under-representation of women. We do not wish to go down the road of an employer having to defend any situation where the statistics show women are under-represented regardless of whether the employer has done anything to cause this. In our view, the Directive does not require us to go that far.
Questionnaire: Three questions for consultation are outlined in the questionnaire at the end of this document.
Responding to the document