A claim from an employee that they are being discriminated against is always going to be bad news. But how can such a claim of discrimination be proved or found wanting? In 2003 the Employment Appeal Tribunal set down guidelines (the Barton Guidance) to be followed by Employment Tribunals as to the burden of proof in sex discrimination cases. Some subsequent decisions have questioned these guidelines. In February 2005, the Court of Appeal clarified the situation by issuing the revised Barton Guidance. If you would like these guidelines in full, please e-mail lisa@hradvantage.co.uk

In the meantime, some of the key points for employers are:

• To make a successful claim an employee has to prove on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the employee which is unlawful.
• If the employee does not prove such facts, he or she will fail.
• It is important to bear in mind in deciding whether the employee has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that he or she would not have fitted in.
• Where the employee has established facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the grounds of sex, then the burden of proof moves to the employer.
• The employer then has to prove that he did not commit, or as in the case may be, is not to be treated as having committed, that act.
• Compliance with codes of practice and sex discrimination questionnaire procedures will be important.
• The employer will need to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex.
• A tribunal would normally expect cogent evidence to discharge that burden of proof. In a nutshell, to defend a claim when an employee has been able to show that there could have been some discrimination, employers must be able to show that they take note of Equal Opportunities codes of practice and questionnaires and have the evidence to show that no discrimination whatsoever took place. In practice this means being able to support all decisions which may lead to claims of discrimination, for example promotions or pay rises, with a clear, contemporary, non discriminatory rationale.

If you have any doubts about how you might fare in the face of a claim, or would like to check you have appropriate polices and arrangements to avoid claims in the first place, give Stephen Finn a call on 01494 451 681 or email stephen@hradvantage.co.uk

July/August 2005