Indirect Sex Discrimination

Indirect discrimination is where there are rules or conditions which apply to everyone, but which affect one group of people more than the others, where there is no good reason for the rule. It is aimed at conduct or practice which, on surface, appears to be neutral or innocuous, rather than discriminatory, but which in effect, has an adverse impact on a particular sex or race.

In the fictional case of Mary Smith, she was indirectly discriminated on sex that is unlawful under (s 1(2) (b)) b Sex Discrimination Act 1975. Its definition has been altered slightly by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 SI 2001/2660. Before this, both the burden of proof and the definition of indirect discrimination were the same in cases of sex and race discrimination. Section 63A of the SDA 1975 changes the burden of proof. Now, where a complainant proves fact from which the tribunal can conclude, in the absence of an adequate explanation from the employer, that an act of discrimination has occurred, the tribunal must uphold the complaint unless the respondent proves he did not commit the act. Thus, the Regulations impose a statutory duty on the tribunal to shift the burden of proof where the facts establish a prima facie case of discrimination.

A REQUIREMENT OR CONDITION IMPOSED ON ALL APPLICANTS

Mary was an employee for seven years, who use to work full time as a personal assistant for Mr. Cohen before she had the baby and now she wanted a job share, to do part time work. Mr. Cohen has told her that the job is not open to part time staff or can it be job shared. Although there is no automatic right for women returning from maternity leave to job share as held in British Telecommunications plc v Roberts and Longstaff. The EAT concluded that where the employer turned down this request, there is still a possibility of indirect discrimination.

In Mary’s case, a refusal of her request to work part-time (despite a contractual obligation to work full-time) can amount to the imposition of a practice that will be discriminatory unless it can be objectively justified (Lockwood v Crawley Warren Group Ltd.) The test for determining whether an act was discrimination is objective and not subjective. The basic right to request flexible conditions has been introduced by s 47of the Employment Act 2002, which will amend Employment Act 1996. Section 17(2) (c) EA 2002 substitutes a new S. 71(4) (c) ER Act, which allows for regulations to deal with the right to return after ordinary maternity leave. This dependency right will take effect on April 2003. Mr. Cohen, will not be able to refuse request like this because he has no clear business reason. Similar cases had been held to be indirectly discriminating as held in Briggs v North Eastern Education and Library Board and Amos v IPC Magazines. In Chief Constable of Avon & Somerset Constabulary v Chew , the EAT uphold a tribunal’s decision that a requirement to comply with shift rosters in order to be entitled to work part-time was indirectly discriminatory. In Perera, it was held that a requirement or condition could only be said to exist when it amounted to a complete bar if not met. This means that the practices which are decisive in a particular situation but which are not absolute bars cannot form the basis of a claim. The difficulty in expressing a restrictive practice as a requirement or condition, the potential impact of Perera, and the widespread use of ‘preference’ rather than criteria, give grounds for concluding that the wording is too narrow. Perera had created a loophole whereby employers can simply relegate all job requirements to “mere preferences” and escape the domestic discrimination legislation. The decision in Perera has in effect been challenged by the EAT in Falkirk Council v White.. Under the previous definition therefore it is clear that working full time is a necessary requirement for the personal assistant’s job because Mary was told that she cannot apply because she wants to work part time and that the job cannot be job shared. Thus full time working would be classed as a condition or requirement pre-2001 and most certainly would be a provision, criterion or practice under the amended section.

DETRIMENT

There are few authorities on what constitutes a detriment in indirect discrimination. In Coker v Lord Chancellor the tribunal considered that to demonstrate detriment the appellant has to show that, for the objectionable requirement, Mrs Coker would have been qualified to be considered for the appointment. Mary had suffered a detriment in being deprived of the financial benefits. She could properly have done so with some prospect that her application would receive consideration. Detriment means being subjected to a disadvantage (MoD v Jeremiah ). It affected her status of work, longer hours, less chances of promotion and less pay.

Fairclough stated:

“In sex and racial discrimination cases detriment arises in two contexts. It is unlawful to discriminate (directly or indirectly) in the arrangements made to determine who should be discriminated. Detriment is one of the matters that an applicant must demonstrate to succeed in a claim of indirect discrimination.”

Under the new Employment Act, Mary Smith is eligible to make request to her employer. The qualifying criteria for those who will be eligible are: be employees as opposed to agency workers; have at least 26 week’s continuous employment with their employer (which fits in with the proposed changes to maternity leave); have a child under six for whom they are responsible as a parent; make the request to enable them to care for that child. Mr. Cohen’s refusal for a job share is unlawful because personal assistant job is not managerial or supervisory work, which demands full-time (Holmes v Home Office (1984)). Clerical posts can easily be shared because it is less technical. Demoting her will not be a proper utilization of her seven years of long experience as a PA and therefore cannot be justified. Prof. Leighton commented; “The employment Guidelines for 2002 is to ensure full utilisation of skills and not to discourage women and others from entering the labour market because of low pay and lack of opportunity more generally.” The alternative work was degrading in terms of the working hours, status and salary. Under ERA s67 the employer must find alternative work most suitable for her, and appropriate in circumstances. A telephone receptionist has a lower status, less pay and henceforth inappropriate.

Bourne and Thorpe stated that:

“Where an employer seeks to impose fresh terms unilaterally there will be a breach of contact. If the employee continues to work under protest and does not accept the changes in his terms, an action becomes possible under s.13 of the Employment Rights Act in respect of unauthorised deductions of wages.”

This is a preview of the whole essay

Bourne and Thorpe stated that:

Once the complainant has established that a requirement or condition has been applied to him, which is also applied equally to other persons, he must then show adverse impact. There is little doubt that this can be most contentious part of his claim. The appropriate pool of comparison must be selected, preferably supported by statistical evidence. It is then a matter for the employment tribunal whether it will accept the pool for comparison must be selected, preferably supported by statistical evidence. It is a fact that it is more difficult for women than men to meet the full time requirement of the job because women do most of the childcare. However in Walkingshaw v The John Martin Group 15 November 2001; Case No: S/401126/00, a recent case of a man who was on full-time employment requested to do part time job to look after his child won the case on direct discrimination. In Mary’s case the detriment relied upon is the economic loss through demotion of post to a telephone operator. Therefore the relevant question under paragraph (iii) is did the applicant suffer the detriment?; In this case she could not comply with the requirement to be a full time worker and therefore suffered a detriment. The date on which compliance with the requirement or condition is to be judged on which it is applied, not at some future date .

In Handels-og case, the ECJ held that is contrary to the Equal Treatment Directive and to the Equal Treatment Directive and to the Pregnant Worker’s Directive …Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, of protecting woman’s biological condition during and after pregnancy.

Prof. Leighton stated:

“Maternity Directive of 1992(92/85) had a focus on the health and safety aspects of pregnancy (so as to use Article 118A). Refusal to give a job, even where the job is of short duration, has long been considered discrimination on grounds of sex. (Dekker C-177/88 1-3941 & Webb v Brown case)

Justification

Section 1(1)(b) and SDA 1975, s. 1(2) as amended provide a defence for the employer in that he is given the opportunity to justify the requirement or condition. The test for establishing justification is the same as the test for establishing a genuine material difference/factor under EPA 1970, s. 1(3). In the case of Hampson v Department of Education and Science, it was held, on the meaning of ‘justifiable’ within s. 1(1)(b), that it requires an objective balance to be struck between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it. The test of justifiability in related fields should be consistent with each other. Lord Balcombe commented ‘In my judgement ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.”

Furthermore Lord Justice agreed that the best interpretation which can be put on the authorities, in particular on the decisions of this court in Ojutiku v Manpowers Services Commission and of Rainey v Greater Glasgow Health Board, is that the correct test is one which requires an objective balance to be struck between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it. If, and only if, its discriminatory effect can be objectively justified by those needs will the requirement or condition be ‘justifiable’ within s1 (1)(b)(ii) of the Race Relations Act. The fact that a requirement or condition is not inherently discriminatory does not amount to ‘justification’.

In Ojutiku case it was held that it was not essential for an employer to prove that the requirement was necessary for the good of the business

but rather that

“If a person produces reasons for doing something which would be acceptable to right thinking people as sound and tolerable reasons for so doing then he has justified his conduct.”

As a result of this decision, in Legislating for Change? The EOC proposed that “justifiable” be amended to “necessary”. This proposal has been-re considered in the light of developments in European Community and United Kingdom law. The ECJ, in Bilka-Kaufhaus GmbH v Weber von Hartz [986] IRLR 317, adopted a strict test of justifiability is incorporated in the Sex Discrimination Act.

Mary Smith’s employment status is of an employee and the contract of employment was of a PA and not a receptionist, which is of a lower status and pay. Her period of employment is long. The Jewish firm needs a seminar from the Racial Equality First to understand the legal policies. It is a violation of Equal Treatment Directive. Mary was subjected to other detriment (s 6 (2) (b); detriment may exist even though the employee is compensated for it. In Jeremiah v Ministry of Defence, it was held that the fact that the employee was compensated for the dirty work by an additional payment did not mean that he was subjected to a detriment. An employer cannot buy the right to discriminate.

In London Underground Ltd V Edwards, the EAT held that the employment tribunal had been entitled to take into account there common knowledge that proportionately a larger number of women have childcare responsibilities than men, and thus indirect discrimination had been made out. Having regard to her long service (10 years) and the fact that the demands for her family would be less in the future, the employers should have made arrangements. Thus the defence of justification was not made out.

Direct Racial Discrimination

Direct discrimination is when one is treated less favourably because of one’s race. But a few types of job, employers are allowed to make a person’s race a ‘genuine occupational qualification. permissible discrimination on qualification are allowed for authenthecity. In the second case, Errol Davies was directly discriminated on racial grounds when his promotion was refused because of his German partner not because of his Afro-Caribbean race origin. Under s (4)(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them ; or

(c) by dismissing him, or subjecting him to any detriment. Mr. Cohen subjected Errol to his detriment by injury to feelings when he formally offered told him that he fitted the bill and economic benefits.

His case is much easier to prove because he has direct evidence; but in a situation where there is no one there to testify it is extremely difficult to prove it. Direct evidence of race discrimination is likely to consist of inferences raised from primary facts as in King v Great Britain-China Centre. It is the leading case on burden of proof in racial discrimination.

The fact that a less qualified person of a different race is promoted above a better- qualified person of another race does not automatically result in discrimination. But if a less qualified individual of a different race from the complainant achieves promotion instead of the complainant then this will give rise to the inference of discrimination particularly if the selection process involved irrelevant or subjective criteria or criteria which were indirectly discriminatory. In Battacharya it was held that in the absence of any convincing non-discriminatory explanation, the tribunal drew an inference of unlawful race discrimination.

In Wilson v TB Steelworks a white woman was on the point of being offered a job, but when she disclosed that her husband was black, the offer was withdrawn. It was held that this amounted to unlawful discrimination. The fact that members of racial groups are treated differently does not, by itself, constitute unlawful discrimination. It must be shown that the treatment was less favourable on the grounds of race, which happened on the case Errol Davies. Although he was of Afro- Caribbean descent he was not discriminated on this ground. White race can also be reversibly discriminated as in the recent case of a Caucasian barrister in the CPS, who was discriminated from his coloured competitor. During the formal interview Mr. Cohen told Errol that he “fitted the bill” and was “just the man for the job. It was in the informal party that Mr. Cohen discovered that Errol’s partner, Heike Muller was a lady of German origin.

The worst part of it was that Mr. Cohen became cold and non-conversational towards them and they were both asked to leave after only 20 minutes, whereas the other candidate and his partner were allowed to remain. This is a violation of Human Right Act article 8 and 14.

Once a person is employed, it is unlawful to discriminate against him on racial grounds in the way he is afforded access to opportunities for promotion. Direct Discrimination involves treating someone less favourably on racial ground because of his partner, who was of a German race. Errol has superior qualifications and experience compared to his male and Caucasian competitor. In R v Birmingham City Council, ex prate Equal Opportunities CommissionLord Goff stated:

“In the present case whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys, and so are subject of discrimination under the Act of 1975.This is well established in a long line of authority.”

It is understandable that a lot of British people whose memories of German atrocities during Nazi invasions have resentment towards the Germans, but if we allow this the purpose of the Act will be defeated. Neil LJ in King stated that the current law on proving direct discrimination is.

“Though there will be some cases where for example, the non-selection of the applicant for a post or promotion is clearly on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate of unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds This is not a matter of law but, as May LJ put it in Noone, ‘almost common sense ”

Errol’s case is a straightforward case because Carol Jones overheard the conversation so he has a witness. The non-selection of Errol was due to racial ground of his partner, a prima facie case of racial direct discrimination.

Victimisation

If a person wants to complain about being discriminated against (or if a person are helping a colleague who is complaining), that person might fear that the employer may, for example treat her/him less favourably for this reaso

Any person may complain to the employment tribunal that another person has committed an act of discrimination. It will be unlawful for Mr. Cohen under S 4 (1)(b) to threaten Carol to cut her pay in half if she assist Errol in a discrimination claim.

It is unlawful to victimise a person because that person has brought proceedings under the Act, given evidence or information in connection with such proceedings, or made allegations that someone has contravened the Act. Section 4 1(b) Discrimination by way of victimisation is stated as: a person (A) discriminates against another B if he treats B less favourably than he treats or would treat persons in the same circumstances, and does so by reason that B has (b) given evidence or information in connection with proceedings brought by any person against A or any other person under these Regulations.

The Commission’s original view was that wider publicity of the illegality of victimisation could give sufficient protection to those seeking their rights. But in Cornelius v University College of Swansea it appears that it is no longer sufficient for complainants to show that they were victimised because they brought proceedings against their employer under the Act.

The new definition is as follows: A person discriminates against a woman if he applies to her a provision, criterion or practice which he applies or would apply equally to a man but (i) which is such that it would be to the detriment of a considerably larger proportion of women than of men, and (ii) which he cannot show to be justified irrespective of sex of the person to whom it is applied and (iii) which is to her detriment. SD1975 states that Indirect Discrimination arises; where a person applies a condition or requirement to another but which is such that the proportion of persons from one sex who can comply with that condition or requirement is considerably smaller than the other sex and that it cannot be shown that the condition or requirement is justified and the condition causes that persons detriment because they cannot comply.

Fairclough Nick, Remoulding China Clay, [20002] NLJ At the same time race and sex discrimination had the same principles on burden of proof. For sex discrimination took effect on 12 October 2001(see Proof Positive (2001) 145 SJ 1932, 9 November). It was unnecessary, even before the new rules, to find overt discrimination (Nagarajan v London Regional Transport [2000] 1 AC 501 HL.

[1996] IRLR 60; R. Painter & A. Holmes, Cases & Materials on Employment Law, 4th ed., page 343.

Atkinson Jamie, Flexible Thinking [2002] NLJ October: This section will come into force on April 2003 and the Flexible Working Regulations (the draft Regulations)

[1990] IRLR 181,NICA: Brian Willey, Employment in Context, page 367, stated that the right to return is to the same position or to an equivalent position. If this is not practicable, then an employee has the right to be offered suitable alternative employment.

4 April 2001; case No. 2301499/00. The Amos case is a good example of how the tribunal can take a critical approach to even detailed reason given by an employer failed to follow its own maternity policy was clearly influential in its decision.

(503/00) EAT, 28.9.01, Case Report: Discrimination- Considerably Smaller Proportion, IDS Brief 701, January 2, 2002, page 5. Indirect Sex Discrimination. An employment tribunal, in assessing whether or not a ‘considerably smaller proportion’ of women than men could comply. Rather, the tribunal had been entitled to adopt a flexible approach, taking into account a number of relevant factors. In the circumstances, although the tribunal’s analysis suggested that only 2.26 percent fewer than men could comply with the condition in question, the tribunal had been entitled to conclude that the applicant had been indirectly discriminated.

Perera v The Civil Service Commission and the Department of Customs and Excise [1983] IRLR 166 CA.

[1997] IRLR 560. The EAT it was held that if a factor described as a preference was in reality the deciding criterion in who is offered a job or promotion, it was a deciding condition or requirement.

Fairclough N., Detrimental Requirement: Why is a detriment a requirement? Requiring detriment to be shown appears intended to screen out claims: in direct discrimination to stop trivial complaints: (Peake v Automotive Products [1978] QB 233, CA); in indirect discrimination to establish that the claimant is affected by the discrimination.

[2001] EWCA Civ 1756,The EAT’s view, that the detriment had to be some physical or economic consequence which was material and substantial”, seems unsupported by authority, though the Court of Appeal did not comment.

[1980] QB 87, CA.

Fairclough Nick, Detrimental Requirement, 5 April 2002,Solicitor’s Journal, page 312.

Colin Bourne and Paul Thorpe, [1999] The Transfer of Undertakings in the Public Sector; Preservation, Variation and Harmonisation of Terms and Conditions, Ashgate, Dartmouth, page 166. In Rigby v Ferodo Ltd. [1987] IRLR 516, an employee made a breach of contract claim when his pay had been unilaterally reduced. The House of Lords rejected the employer’s argument that such an action was effective to terminate the contract automatically, limiting the employee to damages during the notice period, at the end of which the contract would have lawfully terminated.

Raval v DHSS [1985] IRLR 370.

Article 2 Directive 76/207 “ No discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status. Derogations from Equal Treatment Principle Article 2(2) Dir. 76/207 where sex is the determining factor by reason of the nature of the job; Article 2(3) Dir.76/20 provisions concerning the protection of women, particularly as regards pregnancy and maternity; Art. 2(4) positive discrimination.

Prof. Patricia Leighton (Glamorgan University), Atypical Employment: Is the Emerging Regulatory Framework Either Appropriate or Helpful?, 18 October, 2002 (An Outline paper for a research seminar)at Robert Gordon University, Aberdeen.

Rainey v Greater Glasgow Health Board [1987] IRLR 26 and Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317.

[1989] IRLR 69 CA.

Lord Keith said in reference to an argument based on s 1(1)(b)(ii) of the Sex Discrimination Act 1975, which is identical to mutates mutandis, to s 1 (1)(b) of the 1976 Act: This provision has the effect of prohibiting indirect discrimination between men and women. In my opinion it does not, for present purposes, add anything to s. 1(3) of the Act of 1970, since, upon the view which I have taken as to the proper construction of the latter, a difference which demonstrated unjustified indirect discrimination would not discharge the onus placed on the employer. Further, there would not appear to be any material distinction in principle between the need to demonstrate objectively justified grounds of difference for purposes of s. 1(3) and the need to justify the requirement or condition under s 1 (1) (b) (ii) of the Act 1975.

[1982]IRLR 418 & HL.

[1987]IRLR 26.

Racial Equality First assists victims of racial and sex discrimination and gives seminars to employers to educate them on the legal policies of the government; the author had witnessed an actual negotiation between REF representing a black female worker of Kitchen Direct, who was discriminated by the respondent who was the manager.

Selwyn N.M., Law of Employment, [2002] 12th ed., Butterworths, London, page . London Underground v. Edwards [1998] IRLR 365. In this case, of all workers in the selected pool, only the applicant was unable to comply with the condition in question. Adopting a flexible approach, the Court of Appeal took into account the make-up of the workforce under consideration, the fact that no man in the pool was disadvantaged, and the fact that it was inherently likely the condition applied in that case would disadvantage more women than men.

In some cases there will be no statistics available. In such circumstances, tribunals should adopt a flexible approach to the assessment. If a tribunal considers that there is an intrinsic risk that a considerably smaller proportion of women than men will be able to comply with the requirement or condition, it should find that a sufficiently disparate effect for the purposes of S. 1(1) (b) has been established.

The Human Right Act 1998 has a wide –ranging discrimination provision which includes types of discrimination provision which includes types of discrimination that are not covered in other discrimination laws. However it can be used when it is part of one of the other ‘articles’ ( the specific principles) of the act, such as the right to respect for private and family life. Also, rights under the act can only be used against a public authority and not a private company.

Bhattacharya v London Borough of Newham COET 1469/200:Restricting eligibility to a particular grade can also indirectly discriminate if it means that in selection practice selection takes place from an all- white pool of labour.

Barclays Bank plc. V Kapur and Weathersfield v Sargent.

[1989]IRLR 173 HL.

Article 11 Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment. htrtp//europa.eu.int/smartapi/cgi/sga doc? Ppage 8of 10.

[1987 IRLR 141. In McAdam v Fullarton (Irvine) Ltd, an industrial tribunal was of the opinion that an applicant’s selection for redundancy may have been influenced by his being named as a comparator in an equal pay claim. However, the victimisation provision s of the Act would have given the applicant the protection, as his involvement in the claims was passive. This case demonstrated a potential loophole. The provision was amended to make clear that any person suffering detriment as a result of anything done under or by reference to the Sex Discrimination Act or Equal Pay Act shall be the victim of unlawful discrimination.