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 definition1 has been altered slightly by the Sex Discrimination2 (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. 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 Longstaff3. 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 474of 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 Board5 and Amos v IPC Magazines6. In Chief Constable of Avon & Somerset Constabulary v Chew 7, 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 Perera8 has in effect been challenged by the EAT in Falkirk Council v White9.. 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.

There are few authorities on what constitutes a detriment10 in indirect discrimination. In Coker v Lord Chancellor11 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 12). It affected her status of work, longer hours, less chances of promotion and less pay.