BURDEN OF PROOF

HC Deb 18 June 1975 vol 893 cc1467-78

In determining for the purposes of any provision of this Act whether the complainant has been discriminated against on grounds of sex or marital status, it shall be for the respondent or defendant to show what was or were the reason or reasons for the act or acts complained of and that it or they were completely sufficient reason or reasons for the act or acts complained of.—[Miss Richardson.]

Brought up, and read the First time.

Miss Richardson

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

It will be for the convenience of the House if we discuss at the same time Amendment No. 63, in Clause 57, in page 33, line 30, at end insert: 'and it shall be for the respondent to show that any act complained of is not discriminatory'. Amendment No. 64, in Clause 60, in page 35, line 16, at end insert: 'and it shall be for the respondent to show that any act complained of is not discriminatory'. and Amendment No. 65, in page 35, line 26, leave out from 'made' to end of subsection and insert: 'if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on the ground of his sex or marital status as the case may be.'.

Miss Richardson

This is one of the most important clauses discussed this evening because it concerns the burden of proof. As the Bill now stands, the burden of proof is placed unfairly and quite unreasonably on the woman complaining of discrimination.

When the complaint is brought before a tribunal or a court the respondent is, in most cases, likely to be a substantial organisation with large resources. However, the complainant is likely to be a solitary figure who could well not be used to this kind of procedure, and nervous about legal proceedings and what has to be done. Indeed, once or twice I have attended insurance tribunals—and these are not the kind of courts and tribunals to which we are referring—when a woman's benefit has been withdrawn and when women have often had to appear, without any help, before a nerve-racking array of people in circumstances in which I would have been very nervous. In a case such as this, it would be wholly unfair to put the onus of proof upon the complainant.

Although we do not always like it, we know that there are many women in this country who are more timid than men, and who have been brought up to believe that they should be more timid than men. It is part of the whole unhappy concept of their training and their conditioning, which even now still exists among some Conservative Members who wish to retain the status quo, who believe that we have been brainwashed into suggesting anything different, and who want women to believe that it is not their proper role to adopt aggressive attitudes, to stand up for their rights and to argue their case.

Therefore, it would be a major personal achievement for any woman to take on the big organisations and to take a matter to court single-handed. If she has to bear the whole onus of proof, it is unlikely that she will ever have the courage to bring the case, and, therefore, the heart of the Bill will, perhaps, be rendered useless.

We must accept the practicalities of the situation. Money, information, legal resources and expertise are more freely available to big organisations than to the individual. The burden of proof must thus be on the side of the big battalions. This is the principle which is followed in criminal cases—a person is assumed innocent till he is proved guilty.

The Trade Union and Labour Relations Act, 1974, Schedule 1, paragraph 6, which deals with dismissal, provides that it shall be for the employer to show that a dismissal was not unfair. When the Government drafted that Act perhaps they had men in mind rather than women—whom they have in this case. In the Equal Pay Act 1970, Section 2(6), which deals with material differences between a woman's case and a man's case, says that then it shall be for the woman's employer to show …". The same provision appears in the new Section 1(3) of that Act, which is made by Clause 8 of the Bill. It says that … if the employer proves …". In this context all of these measures lay the burden of proof upon the employer. Clause 43(3) of the Employment Protection Bill sets out precisely the same principle.

I cannot understand why the Sex Discrimination Bill should be left out in the cold in this area and why it should be discriminated against in this way. My hon. Friend the Under-Secretary argued in Committee that the reason why it was being rejected by the Government was that it was too difficult for respondents to prove a negative. Is this not precisely what the complainant is being asked to do? Will she not be obliged to show that there was no good reason why she should not have got the job, the promotion, the loan or whatever it is? I absolutely agree that it is difficult to prove a negative. That is all the more reason why, if someone has to prove a negative, the big guns should have a duty to prove it and not the person who is standing in isolation.

In practice, how can a woman have access to all the information which she would need to go to court or to a tribunal in a case such as this? She may need legal aid. There may certainly be highly technical data which she needs and she, perhaps, would not know how to go about obtaining it. The records to which she would want to have access are likely to be in the offices or the hands of the respondent or defendant. In some cases, perhaps he may not have access to them very easily, but it is much easier for him to get hold of them than for her. Therefore, if she is forced to bring the case herself, how can she support the case? The fact is that she cannot, and the result in practice will be that she will not bring any case. Therefore, a very important part of the Bill will be lost.

I hope, therefore, that the Government have thought very seriously about this matter. It has been discussed on many occasions. I hope that they will consider that there is a very strong case, not only in justice in putting the onus of proof upon the respondent or the defendant, but also in simply bringing it into line with other legislation that we have had recently. I hope that the Government will be willing to look sympathetically upon the clause.

7.0 p.m.

Mr. Greville Janner

In spite of the unkind words of my hon. Friend the Member for Barking (Miss Richardson) about lawyers, may I say that she is a great loss to the legal profession?

All that I wish to do is to add two or three questions to hers. First, under the Redundancy Payments Act 1965, where a person is dismissed he has to prove that he has been dismissed, and then there is a presumption of redundancy which it is for the employer to disprove if he can. Then we move on to the Trade Union and Labour Relations Act, under which the burden of proof was quite deliberately shifted by us, by a Labour Government, from where it was—which was nowhere—on to the employer, who must now prove that the dismissal was fair.

The reason for this was essentially the reason given by my hon. Friend the Member for Barking—namely, that the parties are not on equal terms when they come before an industrial tribunal. There is no legal aid at an industrial tribunal, and the employer generally is in a very much stronger position.

Under the Equal Pay Act the same applies, as it will under the Employment Protection Bill. It is not simply that the respondent must prove that the dismissal was, for example, unfair. The first stage, the basic proof initially, rests upon the individual complainant to show, in one case, that he has been dismissed, and in this case that there was a discriminatory practice. Only if it is shown that there was a discriminatory practice does the burden of proof then shift, under the new clause, on to the employer or the person who is alleged to have discriminated to show that there was a reason other than sex, which is banned by the Bill.

Under the Health and Safety at Work etc. Act it is exactly the same principle. Where it is shown that there is an unsafe practice, the burden of proof then—and only then—shifts to the accused to show that it was not practicable or reasonably practicable for him to do likewise.

The present Government have rightly accepted the principle in the Health and Safety at Work etc. Act—which, incidentally, was originally introduced by the previous Conservative Government. The Government have accepted it in the Trade Union and Labour Relations Act, over and above and by way of change from the Industrial Relations Act, and they have included it in the Equal Pay Act and in the Employment Protection Bill. Therefore, I do not understand why the Government should be doing something different here.

It may be that there is some strange, invisible explanation which is not apparent, despite complaints. If so, perhaps my hon. Friend the Minister will give that explanation. But it seems very unfair that this principle applies in all other legislation but not in this Bill. We need a very good reason in order to accept what would appear to be a discriminatory practice on the part of the Government as regards women in this Bill, when as regards everyone else in all other legislations the burden of proof is placed squarely upon the employer or upon the person alleged to have acted wrongly once a wrongful act has been proved.

Dr. Summerskill

As we are discussing the new clause with Amendments Nos. 63, 64 and 65, I should like to speak first to Amendment No. 65.

Since the Committee stage of the Bill I have been giving very careful consideration to the whole subject of the burden of proof, and particularly as we have before us a new clause and three amendments all dealing with the same subject. I appreciate the problems described by my hon. Friend the Member for Barking (Miss Richardson) of the woman who is pitted against perhaps a very powerful employer, who can call to his aid a great many people, when she may be alone in fighting her battle. The Government do not accept as a general proposition that the evidential burden in proceedings under the Bill should be placed on the respondent, but it has been put to me—and I am now disposed to accept—that in sub- section (3) of Clause 60 we are dealing with a different situation.

The amendment is not concerned to reverse the normal evidential burden on the complainant to show that the respondent has committed an act of unlawful discrimination against her—in the case of an act of indirect discrimination—but to ensure that when it comes to determining whether the indirect discrimination was intentional and, hence, whether the complainant should receive damages or compensation, it should be for the respondent to show that the indirect discrimination which he has been found by the court or tribunal to have committed was committed unintentionally.

It is important to appreciate that we are dealing with a situation in which a court or tribunal has already found that the respondent applied to the complainant an unjustifiable condition or requirement with which she could not comply and with which a smaller proportion of women than of men can comply.

Given this, I am inclined to think that we should accept that it should be for the respondent to show, on the question whether damages or compensation should be awarded, that he had no intention to treat the women less favourably than members of the opposite sex.

Damages or compensation ought not to be available unless there was such an intention. But I am disposed now to agree with my hon. Friend in relation to Amendment No. 65, that it is likely to be considerably more difficult for the complainant to prove an intention, assuming that there was an intention, than for the respondent to prove that he did not have an intention, where it does not exist.

It is usually regarded as too onerous a burden for a person to have to prove a negative, as I have said in the past. But I would be prepared to concede that in moving the amendment to Clause 60(3) in Committee to put the evidential burden back on the complainant, we may have overestimated the difficulty of proving this particular kind of negative in the situation to which Clause 60(3) relates.

My point is this. Whether or not a condition or requirement which is discriminatory in its effect is justifiable is a matter on which a court or tribunal will have to make up its mind in deciding whether the respondent committed an act of indirect discrimination. We must recognise, however, that even if the court does not accept that the reasons with which the respondent has sought to justify the condition or requirement are sufficient to make them objectively justifiable, the respondent will nevertheless be able, when it comes to deciding whether he should pay damages or compensation, to argue that these reasons—and not an intention to treat women or men less favourably—were, in fact, the reasons why he applied the conditions or requirement.

The question which the court or tribunal then has to decide is whether it believes the respondent, and once the respondent has put these reasons forward, provided that they are plausible, it will be for the complainant to show that the respondent applied the condition or requirement with a discriminatory intention.

I conclude by saying, contrary to what I said in Committee—and I am grateful to have had this opportunity to reconsider this very difficult question—that, for the reasons which I have sought to explain, we can afford to accept the reversal of the evidential burden on the issue of damages for indirect discrimination.

Mr. Greville Janner

I greatly welcome this movement in the right direction. However, does my hon. Friend not agree that exactly the same principles she has so eloquently proclaimed in the case of indirect discrimination apply equally and with just the same force in the case of direct discrimination?

Dr. Summerskill

We discussed this matter in Committee and have since reconsidered it. In Committee we decided that there was a distinct difference—whatever we may have felt about the burden-of-proof argument—between indirect discrimination and direct discrimination.

I recommend that the House should support Amendment No. 65.

Mr. Alison

The Minister has made an important concession. However, I am still in some doubt as to whether she has interpreted Clause 1(1)(b), which refers to indirect discrimination, correctly in the context of the intention.

The later Government amendment will trigger off the operation of this subsection in the event of an individual having a complaint to make that she was not able to comply with the requirement and that it was to her detriment. Intention must, therefore, arise only in the case of an individual. Is it likely that the employer can show, or not show, that he had an intention in regard to an applicant? Is that likely to be provable? It must centre round the applicant. The generality of the provisions does not apply. The matter of an intention cannot be included in a provision with which the majority of women cannot comply. Intention can only arise under Clause 1(1)(b), as amended, in respect of an individual complaint.

I cannot see how the employer can be expected to prove intention, one way or the other, convincingly, except in the context of the individual employer. Surely all he can say, when an individual applicant claims that she cannot comply with a provision which is to her detriment, is "I did not intend it to affect her in this way". By definition he cannot have any intention to discriminate against her. She does not know who he is till she comes for the first time to make her application. The intention must relate to the clause as amended, and to the person who alone can trigger off the indirect discrimination clause. The employer cannot know who that person is till she makes the individual complaint. By definition he cannot have any intention one way or the other.

I cannot see that we have made much progress by placing the burden of proof upon the employer in the matter of intention in this context. I hope that the hon. Lady will be able to deal with that point.

Dr. Summerskill

It is the intention of the amendment that the indirect discrimination should be shown to be intentional. If it was not intentional, the complainant cannot receive damages or compensation. We are reverting to a discussion on the meaning of indirect discrimination. We shall come to that later. As regards the burden of proof, it must be shown that the indirect discrimination was intentional. The complainant can receive damages or compensation only if that is proved.

7.15 p.m.

Mr. Alison

The hon. Lady has not addressed herself to the problem which arises in Clause 60(3), which states that no award of damages shall be made unless the requirement or condition in question was applied with the intention of treating the claimant less favourably … There cannot be any intention proven one way or the other where Clause 1(1)(b) will only be triggered by an individual coming forward and saying that she was not able to comply. The employer cannot have any intention in respect of an individual of whom he has never heard and who is one out of 35 million women in the community. He cannot know who is the individual who will trigger off this provision till she makes the complaint that she was not able to comply with it. The employer may never have heard of her before. How can he have an intention with regard to her? That is a paradox.

Mr. Ronald Bell

My instinct is to agree with my hon. Friend the Member for Barkston Ash (Mr. Alison) in resisting the concession which the Minister proposes to make. However, I cannot agree with my hon. Friend on the narrow point. Clause 1(1)(b) says: he applies to her a requirement or condition which applies or would apply equally to a man …". I envisage the position whereby an employer advertises a job. He states the requirements, which he applies equally to male or female applicants, but they favour, by their nature, male applicants. When the employer considers the applicant he applies those conditions to her. Therefore, I do not think that the Minister is in the difficulty described by my hon. Friend.

I have a slight hesitation here. I see a valid difference between putting the burden on a respondent on the general question of the discriminatory act. The hon. and learned Member for Leicester, West (Mr. Janner) was wrong. The complainant does not establish a discriminatory practice. She says "I was not given the job". That may prove an act or a practice. It does not prove whether it is discrimination. To put the burden on the respondent would be unfair. Once the principle is established, it is not without precedent that we should put the burden on the respondent to bring himself within an exception.

Mr. Greville Janner

Does the hon. and learned Gentleman agree that, provided the individual complainant proves a discriminatory act, it is reasonable and and fair for the burden of proof to shift on to the employer to show that it was reasonable or that there was a defence to what otherwise would be an offence under the Bill?

Mr. Bell

I thought that the Under-Secretary had proposed that. I was not demurring on the principle. I was somewhat exceptionally tending to support my lion. Friend, but I was coming to my own reservation on the matter. This is not an important point and we should not waste time on it. I am unhappy because Clause 1(1)(b) is an extreme extension of the law. It is an extension about which many people have a great deal of doubt and hesitation, as I have.

I am not stating my general objection to the Bill. However, as a lawyer, I am unhappy about it. I am worried that a nebulous extension of the intention of the Bill should become the subject of the shifting of the burden of proof. I hope that the hon. Lady will give this further thought. She has committed herself with the Secretary of State.

I am not so foolish as to assume that she will, as a result of my short intervention, withdraw her recommendation, but I hope that when the Bill goes to another place further thought will be given to this matter. It is rather an extreme action to shift the burden of proof under a clause like Clause 1(1)(b), which is itself something of a novelty in legislation.

Mrs. Colquhoun

It is a charming parliamentary custom for one to be grateful for small concessions, but I have never really believed in accepting that particular quaintness of this House. The concession amounts to very little. I should like my hon. Friend the Under-Secretary to say clearly and distinctly why the Government ignored paragraphs 86 and 87 of the White Paper which proposed that the burden of proof should rest with the respondent or defendant in cases of discrimination. These proposals were widely welcomed by pressure groups and experts interested in the legislation, and the groups ranged from organisations representing millions of women to academic and professional organisations. They included the National Labour Women's Advisory Committee, the National Joint Council of Working Women's Organisations, the National Council for Civil Liberties, the Fawcett Society, Women in Media, the working party of the British Sociological Association, Woman's Rights Campaign and Status of Women in the Professions. These people are most disappointed at the failure of the Government to translate the intentions of the White Paper into the terms of the Bill.

I would have hoped that the Government would have taken account of this important and fundamental amendment because without it the Bill is reduced to the kind of farce I spoke about in Committee and have described in the House today. It is my duty to warn the Government that if they do not accept the clause they will do the Bill a great disservice because it has no teeth or meaning without it. It is a spurious measure without it and will continue to be revealed as such.

Will my hon. Friend also confirm the situation in regard to legal aid for women appearing before tribunals? This is another matter which must be set out clearly in the Official Report.

Mr. Deputy Speaker

Order. That may be an important question but it is not related to the new clause on which the hon. Member is speaking.

Mrs. Colquhoun

I apologise for straying, Mr. Deputy Speaker.

I hope that the Minister will spell out exactly what her proposition amounts to in terms which ordinary women outside will understand when the facts appear in the media. I am getting sick and tired of not being able to understand the Government's intentions. Do they accept or not the importance of the clause? Yes or no?

Miss Richardson

I hope that the Under-Secretary will speak again. Before she does I want, while expressing how grateful I am for her "acceptance" of the amendment on indirect discrimination, to say how bitterly disappointed I am at the Government's rejection of the burden of proof of direct discrimination.

Between now and the time when the Bill goes to another place, will my hon. Friend the Under-Secretary consider once more extending the measure to cover direct discrimination, if only to conform with other Acts of Parliament? If the Government do not accept the justice of doing so there would at least be a logical case for keeping the Bill on all fours with other Acts. I hope that she will consider this point further in order that we may have a decent Bill.

Dr. Summerskill

I can assure my hon. Friends that the Government have given continued consideration to the difficult problem of burden of proof from the time the White Paper was first being compiled. There even seems to be a difference of view among lawyers themselves on this point, as we have seen in the House today. Two hon. and learned Gentlemen appear to have differed on this difficult point.

I have stated that the Government will accept Amendment No. 65. My hon. Friend the Member for Northampton, North (Mrs. Colquhoun) asked me to clarify it. Her name is among those attached to the amendment, and I should have thought that she would have been in no doubt about what it meant.

Mrs. Colquhoun

I was referring to new Clause 6.

Dr. Summerskill

My hon. Friend the Member for Barking (Miss Richardson) who moved new Clause 6 made a very clear speech about its effects. I think her argument was perfectly clear. I can only say that we have considered this very carefully. We have weighed up the new clause and the three amendments in the light of the Bill as it stood when it left Committee. We have decided to accept Amendment No. 65.

Question put and negatived.