Indirect Discrimination

[Thanks to Keira Gore of Outer Temple Chambers for preparing this case summary]

How does the reversed burden of proof affect the correct approach to an indirect discrimination case? Not very much, according to the President of the EAT in Dziedziak v Future Electronics Ltd UKEAT/0271/11.

The claimant had complained that her employer had taken poor time-keeping into account in a redundancy selection process, and this amounted to indirect sex discrimination. The tribunal had said in its judgment that it was not satisfied that lateness had been taken into account; the claimant argued that because there were facts from which the tribunal could have concluded that it had, s63A of the SDA 1975 (now replaced by s136 of the EqA 2010) meant that it should have so concluded unless the employer could show the contrary.

The EAT succinctly rejects that argument at para 42, explaining that the reversed burden of proof only bites after disparate adverse impact has been shown.