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The burden of proof and access to justice in sex discrimination cases

The burden of proof and access to justice in sex discrimination cases. Frances Meenan. The burden of proof and access to justice. Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex as amended by Directive 98/52/EC

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The burden of proof and access to justice in sex discrimination cases

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  1. The burden of proof and access to justice in sex discrimination cases Frances Meenan

  2. The burden of proof and access to justice • Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex as amended by Directive 98/52/EC • Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (the Recast Directive) • Article 141

  3. The burden of proof and access to justice • Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding • Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC

  4. The burden of proof and access to justice • Article 19 (1) of Recast Directive – • Member States shall take such measures as are necessary, in accordance with their national judicial system, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment

  5. The burden of proof and access to justice • Employment Equality Acts 1998 – 2008 (Ireland) • Nine grounds of discrimination • Section 85(A)(1) • Equal Status Acts 2000 – 2008 • Pensions Acts 1990 – 2008 • Definition of ‘discrimination’ • Direct discrimination • Indirect discrimination

  6. The burden of proof and access to justice • Indirect discrimination occurs where an apparently neutral provision • puts persons of a particular gender at a particular disadvantage • compared with other employees • unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary • Statistics are admissible as proofs

  7. The burden of proof and access to justice • Prima facie case • Right to inforamtion • Do the facts raise a presumption of discrimination? • What proofs can a complainant use to raise the presumption? • Standard of proof • A complainant must show the existence of an apparently neutral provision puts persons of a particular gender at a particular disadvantage • Is the provision objectively justified by a legitimate aim?

  8. The burden of proof and access to justice • Means of achieving that aim are appropriate and necessary • Statistics – are the statistics compelling? • Knowledge of court or tribunal • Common knowledge • Balance of probabilities • Application for non – suit • Onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment • ‘Cogent evidence’ to discharge the burden

  9. The burden of proof and access to justice • Southern Health Board v Mitchell [2001] ELR • ‘The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination…

  10. The burden of proof and access to justice • Mitchell v Southern Health Board contd… • .. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment’.

  11. The burden of proof and access to justice • Unreasonable treatment of a complainant alleging discrimination by an employer, if there is nothing else to explain it, cannot in itself lead to an inference of discrimination even in the absence of evidence from the employer that equally unreasonable treatment would have been meeted out to the comparator (Bahl v The Law Society [2004] IRLR 799) • Bullying may not amount to discrimination

  12. The burden of proof and access to justice • Women are often the victims of ‘multiple’ discrimination – Recital 14 to Directive 2000/43/EC (the Race Directive) • Women are often the victims of ‘multiple’ discrimination – Recital 3 to Directive 2000/78/EC (the Employment Directive) • No definition of ‘multiple’ discrimination • No ‘compound’ ground

  13. The burden of proof and access to justice • ‘Ground by ground’ basis • Past discrimination of part – time workers who were mainly women • Ceiling on compensation award

  14. The burden of proof and access to justice • Conclusions • What is the standard of proof? • More probable than not? • Different standards for different cases?

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