Tribunal clarifies indirect discrimination assessment

In a recent ruling the Employment Appeal Tribunal (EAT) has clarified a couple of key points in how it assesses cases of indirect discrimination.

The EAT said that applicants who want to prove that something disproportionately disadvantages one sex more than another have to show that a "considerably smaller" proportion of one sex is affected. The EAT view in this case was that a difference of around 8% is not "considerably smaller".

In addition, those pursuing claims should show that there is a "persistent and relatively constant" disparity. For this to be the case the percentage difference should not change year by year.

The case in question began in 1991 when two office workers Nicole Seymour-Smith and Laura Perez challenged the then two-year service qualification for unfair dismissal on the ground that it discriminated against women. They produced statistics to show that the rule excluded proportionately more women than men. Their claim went to the European Court of Justice and back to the House of Lords which agreed that the rule did have a discriminatory impact but accepted the government's public policy justification.

By this time the Employment Act 1999 had substituted a one-year service requirement for the two years.

However, while the case was going through the courts, others were making similar claims. Their cases were "stayed" (held up) pending the Seymour-Smith/Perez ruling. These claims have now been heard by the EAT which has rejected them.