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FRONT LINE FIRST-LAW

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Will the new regulations really change the way tribunals approach sex discrimination claims? ...
Will the new regulations really change the way tribunals approach sex discrimination claims?

Modern case law already allows employment tribunals to infer discrimination from any employer's decision unless the men and women affected are equally represented. The consequence of such figure-juggling is that employers will always have to justify their actions if they are to avoid claims.

The regulations, which took effect on 12 October, redefine the principle of equal treatment as it relates to access to employment, vocational training, promotion and working conditions.

The directive requires governments to ensure complainants only have to establish facts from which a court or tribunal may presume discrimination. Once that possibility is established, the burden shifts to the respondent to prove there has been no discrimination.

Article two of the regulations widens 'indirect discrimination' to apply to

any 'provision, criterion or practice' detrimental to a higher proportion of women than men (or vice versa), which cannot be shown to be justified and

which is to the complainant's detriment. Article four makes a similar amendment to discrimination against married persons.

Regulations five and six state that where the complainant proves facts from which the court or tribunal could, in the absence of an adequate explanation, conclude the respondent has discriminated against the complainant, that complaint must be upheld unless the respondent proves no discrimination.

The old law is summed up in Whiffen v Milham Ford Girls School and Oxfordshire CC (The Times, 3 April 2001), which concerned the fairness of a redundancy selection procedure (LGC, 7 June).

Mrs Whiffen, a language teacher, on a series of temporary contracts was made redundant. Under Oxfordshire's standard redundancy procedure, temporary staff went first. On this basis, Mrs Whiffen was automatically selected for redundancy.

She complained the redundancy procedure was discriminatory as temporary staff were more likely to comprise of new recruits or women.

Both the employment tribunal and the Employment Appeal Tribunal rejected her claim saying the policy was 'gender neutral'. Astonishingly the Court of Appeal reversed the decision saying the procedure was discriminatory purely on a comparison of the figures.

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