Sex Discrimination (Indirect Discrimination and Burden Proof) Regulations 2001

These Regulations, which came into force today, make two significant amendments to the Sex Discrimination Act 1975.  Firstly, where a complainant can prove facts from which an Employment Tribunal could conclude, in the absence of an adequate explanation, that discrimination has occurred, the burden of proof shifts to the Respondent to prove that there was no discrimination.  Secondly, the definition of indirect discrimination has been broadened so as to include discriminatory practices as well as provisions and criteria.  In addition, this broader definition of indirect sex discrimination provides that the complainant need only show that such a practice, provision or criterion has a detrimental effect rather than as was previously the case when the complainant had to show an inability to comply with a requirement or condition.

Employment Tribunals are already well versed in the reversal of the burden of proof in relation to race discrimination cases and by analogy to sex discrimination cases.  These new regulations will however make it even more prudent for employers to keep detailed records regarding how decisions about recruitment, promotion, and remuneration have been made so as to rebut any presumption of discrimination.  Perhaps of even greater significance to employers and their HR  professionals, and especially those in traditionally male dominated and/or conservative institutions and industries, will be the potential impact these regulations have on accepted practices and cultures which of themselves militate against flexible work arrangements and the implementation of family friendly policies.
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