Sex discrimination issues are the flavour of the month. On
12 October the Burden of Proof directive was implemented into the law in the UK
and the Equal Opportunities Commission has also just published a new guide on
sexual harassment in the workplace, containing some worrying statistics and
accompanied by a racily entitled leaflet called "What would you do if your
boss asked you for a blow job?"
Background
The implementation of the Burden of Proof directive here
should significantly strengthen the position of applicants in sex
discrimination cases. It formalises the position whereby an applicant merely
needs to show the basis of a case, before the burden of proof then passes to
the employer to demonstrate that sex bias had not in fact occurred. In some
ways, the new law goes beyond the previous case law position, which allowed
tribunals to draw inferences on sex discrimination without the need for actual
proof, but prevented tribunals from drawing inferences where there was no
reasonable evidence from which to draw them.
Now the position might well be that the applicant would win
if the employer has not positively discharged its burden of proof in
demonstrating that sex discrimination had not in fact taken place. This makes
it even harder for employers who, as we saw in Letter of the Law of 7 August
this year, already face rather difficult evidential difficulties in many
cases.
Sex harassment research
The EOC’s research has shown that more than 50 per cent of
women and nearly 10 per cent of men have experienced some form of sexual
harassment at work. But only 5 per cent of those suffering sexual harassment
ever make a formal complaint, and of those who do, only 10 per cent ever get as
far as a tribunal hearing. The EOC’s research shows that many were either too
embarrassed, feared they would not be believed or thought they could handle it
for the sake of their careers rather than bring a claim.
The EOC is now giving online advice on its website
(www.eoc.org.uk) and is determined to get the issue aired in a more public way
– hence its leaflet referred to above. It is also publicising the other
increasing awards for injury to feelings
and the fact that even jail sentences have been given to managers for
indecently assaulting female employees.
Conclusion
Employers need to bear in mind the new Burden of Proof rules
in sex discrimination cases and take notice of the EOC’s new stance. Harassment
policies should be reviewed and linked to disciplinary and grievance procedures
in the appropriate way.
