Sex Discrimination May Be Getting Easier to Prove
Changes to the law in the UK have shifted the balance of power in sex discrimination cases towards employees. Philip Landau, a solicitor at the law firm Landau Zeffertt Weir, explains the new developments:
Employees have traditionally found it hard to prove sex discrimination. Although employment tribunals gave weight to failings in employers' explanations and procedures when drawing inferences of unlawful discrimination, the position was far from uniform or clear.
In October 2001, an amendment to the Sex Discrimination Act came into force (Section 63(a) of the Act) which explicitly introduces a shifting burden of proof in sex discrimination claims.
Essentially, where the applicant proves basic facts (such as unequal pay), the tribunal can conclude that unlawful discrimination has taken place 'in the absence of an adequate explanation from the respondent' (the firm beig sued).
The well publicised Barton v Investec Henderson Crosthwaite case in April 2003 was the first time the Employment Appeals Tribunal (EAT) was faced with the task of updating the sex discrimination position.
Ms Barton had been employed as an analyst by Investec. She brought an equal pay and sex discrimination claim over differentials in salary, long term incentive payments, share options and bonus payments made to her and two colleagues doing similar work (comparatives).
The EAT set out fresh guidance in the light of the statutory changes and confirmed:
(1) It is for the applicant who claims sex discrimination to prove, on the balance of probabilities, facts from which the tribunal could conclude (in the absence of an adequate explanation) that the employer had committed an act of discrimination.
(2) In deciding whether the applicant has proved such facts, it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.
(3) The instances of discrimination can include an evasive or equivocal reply to a Questionnaire (see below).
(4) Where the applicant has proved such facts, from which emphasis could be drawn that the respondent has treated the applicant less favourably, on the grounds of sex, then the burden of proof moves to the respondent.
(5) It is then for the respondent to prove that he did not commit, or is not to be treated as having committed that, act.
(6) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations of failures to deal with Questionnaire procedure and/or any relevant code of practice.
The EAT further said in its Barton decision, in a statement that caught the public eye, that 'this court would certainly wish to make it clear that no tribunal should be seen to condone a City bonus culture involving secrecy and/or lack of transparency, because of the potentially large amounts involved, as a reason for avoiding equal pay obligations'.
The EAT also said there is an obligation on respondents relying on a material factor in equal pay claims to show an objective justification for any difference in pay, not simply to show that there was no discriminatory reason.
Such robust and broad guidance from the EAT on the new burden of proof provisions in the Sex Discrimination Act means the Barton case is likely to be seized upon enthusiastically by lawyers acting for employees who consider they are the subject of sex discrimination. …