Workers complaining of sex or race discrimination at work must prove their case on the balance of probabilities, but clear proof of bias on the employer's part is usually difficult. Bigots are not wont to declare themselves openly, and most discrimination is subconscious. Court decisions have recognised this, allowing tribunals to infer unlawful discrimination where appropriate.
For sex discrimination claims, the European Burden of Proof Directive goes further. It provides that, if an employee establishes a prima facie case of sex discrimination, the burden of proof shifts to the employer to put forward a good explanation for his/her actions. It comes into force this month.
The definition of 'indirect' sex discrimination is also being relaxed in line with the Directive, making it easier for employees to show that apparently neutral practices have an unjustifiably adverse impact on one sex.
- Michael Burd and James Davies, Lewis Silkin solicitors, e-mail: email@example.com.