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Allen, Dominique --- "Reducing the Burden of Proving Discrimination in Australia" [2009] SydLawRw 24; (2009) 31(4) Sydney Law Review 579

[∗] B Comm (Canberra) LLB (Hons) (ANU) PhD (Melbourne). This article is taken from my PhD thesis and draws upon research conducted for the project, ‘Improving the Effectiveness of Australia’s Anti-Discrimination Laws’, which was funded by the Australian Research Council and the Victorian Equal Opportunity and Human Rights Commission. I am grateful to Beth Gaze and Jenny Morgan for their valuable comments and feedback and to the anonymous referees for their helpful comments. Any errors are my own.

[1] For example, 1550 discrimination complaints were lodged at the Victorian Equal Opportunity and Human Rights Commission in 2007 (excluding sexual harassment and vilification complaints) but the Victorian Civil and Administrative Tribunal heard only 11 discrimination complaints that year: Victorian Equal Opportunity and Human Rights Commission, Annual Report (2006–2007) 36. Statistics from other jurisdictions are similar. See, eg, Human Rights and Equal Opportunity Commission, Annual Report (2006–2007); Anti-Discrimination Commission Queensland, Annual Report (2006–2007). It must be acknowledged that direct comparisons of complaint statistics and cases are difficult, because the Equality Commissions report by financial year and the cases are quantified annually. Further, these statistics do not take into account the time lag: cases heard in one year will have been lodged at the Equality Commission during previous years. On complaint statistics, see also Dominique Allen, ‘Behind the Conciliation Doors — Settling Discrimination Complaints in Victoria’ (2009) 18(3) Griffith Law Review.

[2] Neil Rees, Katherine Lindsay and Simon Rice, Australian Anti-Discrimination Law: Text, Cases and Materials (2008) 146; Beth Gaze, ‘Has the Racial Discrimination Act Contributed to Eliminating Racial Discrimination? Analysing the Litigation Track Record 2000–04’ (2005) 11 Australian Journal of Human Rights 171.

[3] The Racial Discrimination Act 1975 (Cth) was criticised internationally on this basis. See United Nations Committee on the Elimination of Racial Discrimination, United Nations Committee on the Elimination of Racial Discrimination: Concluding Observations, Australia, [15], UN Doc CERD/C/AUS/CO/14 (2005).

[4] Jonathon Hunyor, ‘Skin-deep: Proof and Inferences of Racial Discrimination in Employment’ [2003] SydLawRw 24; (2003) 25 Sydney Law Review 535, 535.

[5] For example, since 1997, the European Council has required Member States to ensure that once a complainant has established prima facie discrimination, the respondent bears the onus of proving that there was no discrimination. Earlier European Court of Justice decisions had established the same approach. See, eg, Anya v University of Oxford [2001] EWCA Civ 405; [2001] IRLR 377; Bailieborough Community School v Carroll, DEE 4/1983 Labour Court; Dublin Corporation v Gibney EE 5/1986 Equality Officer; Ross v Royal & Sun Alliance Insurance Plc ES/2001/164, [7.2]–[7.4]. This is discussed further in the context of the United Kingdom and Ireland in Part Two. Christopher McCrudden notes that there is international agreement that judicial practices must be reconsidered in relation to the level of proof required to establish race discrimination and that the onus of proof must rest on the respondent to rebut the complainant’s allegation: Christopher McCrudden, ‘International and European Norms Regarding National Legal Remedies for Racial Inequality’ in Sandra Fredman (ed), Discrimination and Human Rights: The Case of Racism (2001) 251, 299. McCrudden refers to the views expressed by experts in preparation for the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, South Africa, 2001. See United Nations Preparatory Committee on the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Report of the Expert Seminar on Remedies Available to the Victims of Racial Discrimination, Xenophobia and Related Intolerance and on Good National Practices, [52]–[54], UN Doc A/Conf.189/PC 1/8 (2000).

[6] ‘Court’ and ‘tribunal’ are used interchangeably throughout this article, except when they are used to refer to a specific court or jurisdiction.

[7] [1938] HCA 34; (1938) 60 CLR 336.

[8] A notable example is Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 (‘Purvis’). On this issue, see also Margaret Thornton, ‘Revisiting Race’ in Race Discrimination Commissioner, The Racial Discrimination Act 1975: A Review (1995) 81; Phillip Tahmindjis, ‘The Law and Indirect Racial Discrimination: Of Square Pegs, Round Holes, Babies and Bathwater?’ in Race Discrimination Commissioner, Racial Discrimination Act 1975: A Review (1995) 101; Beth Gaze, ‘Context and Interpretation in Anti-Discrimination Law’ [2002] MelbULawRw 18; (2002) 26 Melbourne University Law Review 325, 340–354.

[9] Allen, above n 1; Gaze, above n 2, 181–182; Beth Gaze, ‘The Costs of Equal Opportunity’ (2000) 25 Alternative Law Journal 125.

[10] This is an objective of the laws in Victoria, the Australian Capital Territory, Queensland, the Northern Territory and Western Australia. See, eg, Equal Opportunity Act 1995 (Vic) s 3.

[11] This is specified in some statutes. See, eg, Anti-Discrimination Act 1991 (Qld) s 204. Other jurisdictions state it in their rules of civil procedure or evidence, eg, Evidence Act 1995 (NSW) s 140. Loretta De Plevitz suggests that the absence of an explicit statement about the burden is part of the reason ‘some judges wrongly suggest that the requisite standard of proof lies somewhere between the balance of probabilities and beyond a reasonable doubt’: Loretta De Plevitz, ‘The Briginshaw “Standard of Proof” in Anti-Discrimination Law: “Pointing with a Wavering Finger” ’ [2003] MelbULawRw 13; (2003) 27 Melbourne University Law Review 308, 331.

[12] O’Callaghan v Loder (1984) EOC 92–024, 75 511; Qantas Airways Ltd v Gama (2008) 167 FRC 537; [2008] FCAFC 69, [132]. This is specified in some statutes. See, eg, Anti-Discrimination Act 1991 (Qld) s 204.

[13] See, eg, Equal Opportunity Act 1995 (Vic) s 8(1).

[14]S ee Equal Opportunity Act 1995 (Vic) s 10; Anti-Discrimination Act 1991 (Qld) s 10(3). See also Reddrop v Boehringer Ingelheim Pty Ltd (1984) EOC 92–031, 75 569.

[15] See, eg, Equal Opportunity Act 1995 (Vic) s 9.

[16] The technical way in which courts have interpreted the elements of the definitions of discrimination exacerbate these problems: see Purvis [2003] HCA 62; (2003) 217 CLR 92; Thornton, above n 8; Tahmindjis, above n 8; Gaze, above n 8.

[17] Laurence Lustgarten, ‘Problems of Proof in Employment Discrimination Cases’ (1977) 6 Industrial Law Journal 212, 213. Margaret Thornton refers to the respondent’s ‘monopoly on knowledge’: Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) 180.

[18] Lustgarten, above n 17, 215.

[19] For example, this was a problem for an Aboriginal complainant in Western Australia. The complainant was unable to obtain statistics to support a complaint of indirect discrimination with regard to access to housing, because the State’s Housing Department either did not keep or did not analyse such data: Western Australia Equal Opportunity Commission, Review of the Equal Opportunity Act 1984: Report (2007) 30. See also European Council Burden of Proof Directive 1997/80/EC, art 4(1). The Directive was recently restated: see EC Recast Directive 2006/54/EC, which replaces the Burden of Proof Directive as of 15 August 2009. The 1997 Directive codified earlier principles developed by the European Court of Justice and extended them from equal pay to equal treatment: Vasiliki Nikoloudi v Organismos Tilepikinonion Ellados AE (C-196/02) [2005] ECR I-01789, [69].

[20] Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 (‘Sharma’) 98.

[21] Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521.

[22] Hunyor, above n 4, 539–540.

[23] Arumugam v Health Commission of Victoria (1986) EOC 92–155.

[24] Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319 (‘Arumugam’).

[25] Ibid 330.

[26] Ibid. See also Hunyor, above n 4, 540–544.

[27] Arumugam [1988] VicRp 42; [1988] VR 319, 330.

[28] Sharma [2002] FCAFC 196; (2002) 115 IR 91, 98.

[29] Ibid (emphasis added).

[30] See also De Plevitz, above n 11, 311; Hunyor, above n 4, 539. Chris Ronalds expresses a contrary view: Chris Ronalds, Discrimination Law and Practice (3rd ed, 2008) 202.

[31] Victoria v Macedonian Teachers Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47, [14]-[21].

[32] Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361–2. In Briginshaw, a husband accused his wife of adultery as grounds for divorce and the ‘grave consequences’ for the wife were being found to have acted immorally and losing her status as a married woman: Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 372 (McTiernan J).

[33] De Plevitz, above n 11, 311. See Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 449 (Mason CJ, Brennan, Deane and Gaudron JJ).

[34] De Plevitz, above n 11, 312–318.

[35] Hunyor, above n 4, 540.

[36] Human Rights and Equal Opportunity Commission, An International Comparison of the Racial Discrimination Act 1975: Background Paper No 1 (2008) 93. See, eg, Sharma [2002] FCAFC 196; (2002) 115 IR 91.

[37] De Plevitz, above n 11, 318–319.

[38] Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8; 160 ALR 489, 523.

[39] Victoria v Macedonian Teachers Association of Victoria Inc [1999] FCA 1287; (1999) 56 ALD 333, [20].

[40] Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69, [132].

[41] Ibid [139], [110] (Branson J, with whom French and Jacobson JJ agreed).

[42] For an early discussion see W B Creighton, ‘The Equal Opportunity Act — Tokenism or Prescription for Change?’ [1978] MelbULawRw 13; (1978) 11 Melbourne University Law Review 503. See also Beth Gaze, ‘Problems of Proof in Equal Opportunity Cases’ (1989) 63 Law Institute Journal 731, 732; Thornton, above n 8 93–96; Hunyor, above n 4.

[43] New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977, Report No 92 (1999) [3.101]–[3.107]. More recently, this was recommended by the Western Australia Equal Opportunity Commission, above n 19, 33; and, with regard to indirect discrimination, by Victoria Department of Justice, An Equality Act for a Fairer Victoria: Equal Opportunity Review Final Report (2008) 89.

[44] Sex Discrimination Amendment Act 1995 (Cth) s 3; Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) sch 2.

[45] Compare Commonwealth industrial relations law, which goes a step further than any anti-discrimination statute. An employer is prohibited from terminating an employee’s employment on the basis of certain attributes, including race, sex and age. The employee is not required to prove that they were terminated on the basis of an attribute, but it is a defence if the employer can show the termination was for a reason other than a prohibited one: Workplace Relations Act 1996 (Cth), s 659(2)(f), 664 (repealed).

[46] Sex Discrimination Act 1984 (Cth) s 5(2). For marital status and pregnancy see ss 6(2), 7(2).

[47] The matters to be considered when determining ‘reasonableness’ are stated in Sex Discrimination Act 1984 (Cth) s 7B(2) and apply to ss 5(2), 6(2), 7(2).

[48] See, eg, Howe v Qantas Airways Ltd [2004] FMCA 242.

[49] Age Discrimination Act 2004 (Cth) s 15(2). To date, the Federal Court has not considered the burden of proof in the Age Discrimination Act 2004 (Cth). Commonwealth Parliament amended the Disability Discrimination Act 1991 (Cth) s 6(4) in June 2009: Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) sch 2.

[50] See, eg, Hunyor, above n 4, 535.

[51] Anti-Discrimination Act 1991 (Qld) ss 204, 205. Reasonableness is defined in Anti-Discrimination Act 1991 (Qld) s 11.

[52] I v O’Rourke and Corinda State High School and Minister for Education for Queensland [2001] QADT 1; Parker v North Queensland Animal Refuge Inc [1998] QADT 4.

[53] Compare the United Kingdom courts, which have developed substantial jurisprudence about how the shift in burden in that jurisdiction operates, as discussed below.

[54] Massinde Ntoko v Citibank [2004] 15 ELR 116.

[55] Equal Opportunity or Anti-Discrimination Agencies are typically identified as a Commission, Authority or Board. For ease of reference, the term, ‘Equality Commission’ is used throughout this article.

[56] It is known as the ‘questionnaire procedure’ in Britain, the ‘questions procedure’ in Northern Ireland and the ‘requestion for information’ in Ireland. For ease of reference, the term, ‘questionnaire procedure’ is used throughout this article.

[57] Aileen McColgan, Discrimination Law: Text, Cases and Materials (2nd ed, 2005) 318; Geoffrey Bindman, ‘Proof and Evidence of Discrimination’ in Bob Hepple and Erika M Szyszczak (eds), Discrimination: The Limits of Law (1992) 50, 61.

[58] Contemporary United Kingdom anti-discrimination legislation does not use gender-neutral language. This is also true of recent court decisions. See, eg, Igen Ltd v Wong [2005] EWCA Civ 142; [2005] ICR 931, [76] (‘Igen’). Remaining errors are reproduced without reference to this omission.

[59] Race Relations Act 1976 (UK) c 74, s 65. See also Sex Discrimination Act 1975 (UK) c 65, s 74; Disability Discrimination Act 1995 (UK) c 50, s 56; Race Relations (Northern Ireland) Order 1997 NI 6, art 63; Sex Discrimination (Northern Ireland) Order 1976 NI 15, art 74; Fair Employment and Treatment (Northern Ireland) Order 1998 NI 21, art 44. The procedure was introduced in 1975 in the Sex Discrimination Act 1975 (UK) and included in the Race Relations Act 1976 (UK) the following year: Creighton, above n 42, 529.

[60] Equal Status Act 2000–2004 (Ireland) para 21(2)(b); Employment Equality Act 1998–2004 (Ireland) s 76.

[61] Equal Status Act 2000–2004 (Ireland) s 26; Employment Equality Act 1998–2004 (Ireland) s 81. The complainant can lodge a complaint once they receive the response or one month after the request for information was sent.

[62] Provided requirements relating to format, time limits and manner of service are complied with. These requirements are prescribed by subordinate legislation. See, eg, the Race Relations (Questions and Replies) Order 1977 (Ireland) S.I. 1977, No 842, sch 1.

[63] Questionnaires, including follow-up questionnaires, can be served once proceedings commence, with leave of the tribunal: Carrington v Helix Lighting Ltd [1990] IRLR 6 EAT.

[64] Interview with Graham O’Neill, Senior Legal Policy Officer, Commission for Racial Equality (London, 18 September 2007); Interview with Mary Kitson, Senior Legal Officer, Equality Commission for Northern Ireland (Belfast, 25 September 2007). Bob Hepple et al also note that questionnaires are widely used when the Equality Commissions assist complainants: Bob Hepple, Mary Coussey and Tufyal Choudhury, Equality: A New Framework: Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (2000) 94.

[65] The Commission for Racial Equality closed in October 2007 when, it, along with the other two British Equality Commissions, was amalgamated into the Equality and Human Rights Commission.

[66] Unlike the Equality Commissions in Australia, the Equality Commissions in the United Kingdom and Ireland can advise and assist complainants with resolving their complaint, including by funding litigation.

[67] O’Neill, above n 64.

[68] For example, the respondent’s answers may indicate that there were legitimate reasons why a complainant did not get a job, and, if the complainant is satisfied with the response, there will be no need for further action.

[69] Both Graham O’Neill and Mary Kitson said that being able to assess the merits of a case early on is an advantage of the procedure: O’Neill, above n 64; Kitson, above n 64.

[70] O’Neill, above n 64. See also Hepple, Coussey and Choudhury, above n 64, 94.

[71] He was also concerned that the Employment Tribunal might look unfavourably upon a complainant who had asked a lot of questions that were not targeted, because it viewed this as vexatious: O’Neill, above n 64.

[72] I bid. The complainant can use an evasive response to attack the respondent in court. Mary Kitson also said that asking targeted questions was most effective: Kitson, above n 64.

[73] Camilla Palmer, Barbara Cohen, Tess Gill, Karon Monaghan, Gay Moon and Mary Stacey, Discrimination Law Handbook (2nd ed, 2007) 673. By contrast, Colm O’Cinneide said that one of the difficulties with the procedure is that respondents might simply include a copy of their equality opportunity policy in their reply: Interview with Colm O’Cinneide, Senior Lecturer, University College London (London, 15 September 2007).

[74] They are known as the ‘Request for Information’ (Form EE.2) and the ‘Response to Request’ (Form EE.3) forms and are prescribed by the Employment Equality Act 1998–2004 (Section 76 Right to Information) Regulations 1999 (Ireland) S.I. 1999 No 321.

[75] Forms in equal status complaints follow a similar formula to employment-related forms.

[76] ‘Request for Information’ (Form EE.2), 4, available at

<http://www.equalitytribunal.ie/uploadedfiles/AboutUs/ee_2.pdf> at 28 September 2009.

[77] O’Neill, above n 64.

[78] O’Cinneide, above n 73.

[79] In both countries, once the complainant reaches the prima facie stage, the burden of proof shifts to the respondent, as discussed below.

[80] It is common practice to request statistics in the United Kingdom: Jason Galbraith-Marten, The Fight Against Discrimination in Practice: Shifting the Burden of Proof and Access to Evidence (2007) 36.

[81] O’Neill, above n 64. Where there is no reply and the complainant litigates, the complainant will have to obtain information through discovery: Hepple, Coussey and Choudhury, above n 64, 95.

[82] Race Relations Act 1976 (UK) c 74, para 65(2)(b); Sex Discrimination Act 1975 (UK) c 65, para 74(2)(b); Disability Discrimination Act 1995 (UK) c 50, para 56(3)(b). Questionnaires are now required to note the consequences of failing to reply. This was amended as a result of a recommendation by Hepple et al: Hepple, Coussey and Choudhury, above n 64, 94-95 (Recommendation 43).

[83] Equal Status Act 2000–2004 (Ireland) s 26; Employment Equality Act 1998–2004 (Ireland) s 81. See, eg, Mr John Maughan and Mrs Mary Maughan v The Humbert Inn (Dec-S2006-040).

[84] Mary Kitson could not recall a decision where an inference was drawn from the failure to reply to a questionnaire: Kitson, above n 64.

[85] Colin Bourn and John Whitmore, Race and Sex Discrimination (2nd ed, 1993) 109–110. The authors cite Virdee v EEC Quarries Ltd [1978] IRLR 295 (IT), in which the respondent did not answer any questions except for partially answering one. Geoffrey Bindman also notes the tribunal’s reluctance in this regard: Bindman, above n 57, 61.

[86] Interview with Bernadette Treanor, Equality Officer, Equality Tribunal (Dublin, 27 September 2007).

[87] Galbraith-Marten, above n 80.

[88] Commission for Racial Equality, Code of Practice on Racial Equality in Employment (2005), 34 available at <http://www.equalityhumanrights.com/uploaded_files/code_of_practice_ on_ racial_equality_in_employment.pdf> at 28 September 2009.

[89] See, eg, Race Relations Act 1976 (Statutory Duties) Order 2001 (UK).

[90] [1991] EWCA Civ 16; [1992] ICR 516, 528–529. In Madarassy, the Court of Appeal noted that this passage from King was one of the most frequently cited in anti-discrimination law and worked well in practice: Madarassy v Nomura International Plc [2007] EWCA Civ 33 (‘Madarassy’) [6].

[91] King [1991] EWCA Civ 16; [1992] ICR 516, 518. In King, the inference of race discrimination was based upon the response to the questionnaire and other material. In the absence of an adequate explanation, it is not open for the tribunal to invent one for which there was no evidentiary basis: Kaur and Bakshi v Falkirk District Council (EAT/116/95).

[92] King [1991] EWCA Civ 16; [1992] ICR 516, 529.

[93] [1997] UKHL 54; [1998] 2 All ER 953 (‘Zafar’) 958.

[94] Ibid.

[95] Ibid. This approach was adopted in Ireland: Davis v Dublin Institute of Technology (Unreported, High Court of Ireland, Quirke J, 23 June 2000). See also Mitchell v Southern Health Board [2001] ELR 201.

[96] Hunyor, above n 4, 552 (emphasis in original).

[97] Ibid. For example, Branson J refers to it as such in Booth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39, 49.

[98] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. The reasoning also applies when it is a party who fails to give evidence: Booth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39, 49. The inference should not be drawn when there is a reasonable explanation for the failure: Fabre v Arenales (1992) 27 NSWLR 437.

[99] Booth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39, 50.

[100] The rule in Jones v Dunkel only applies when a party is required to explain or contradict something. An inference cannot be drawn unless evidence is given of facts ‘requiring an answer’: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 321–322. In Arumugam, the Victorian Supreme Court said that an inference cannot be drawn from the respondent’s failure to explain a decision: Arumugam [1988] VicRp 42; [1988] VR 319.

[101] See Treanor, above n 86.

[102] See discussion of Arumugam above.

[103] Bourn and Whitmore, above n 85, 108.

[104] Ibid. Compare Jennifer Ross, who found that the Scottish tribunals were aware of the King guidelines and how to apply them. However, she says that, due to the smaller number of cases heard in Scotland, there is a greater degree of specialisation by tribunal chairs: Jennifer Ross, ‘The Burden of Proving Discrimination’ (2000) 4 International Journal of Discrimination and the Law 95, 98–100, 103–104. This supports Colin Bourn and John Whitmore’s assertion that inferences will be more effective if they are applied by an experienced adjudicator.

[105] Only Queensland and South Australia have retained a specialist adjudicator for hearing discrimination complaints, but the Queensland Anti-Discrimination Tribunal is to be amalgamated into the Queensland Civil and Administrative Tribunal when it commences operation in December 2009.

[106] The United Kingdom Court of Appeal has improved this somewhat by requiring that an employer who wants to rely on the explanation that it treated everyone badly to establish that the treatment was applied regardless of race or sex: Anya v University of Oxford [2001] EWCA Civ 405; [2001] IRLR 377. Since the shift of burden in the United Kingdom, employers must now prove a non-discriminatory reason once the complainant establishes a prima facie case.

[107] Compare Ireland, where courts were applying the shift in the burden of proof before the European Council Directives required them to. A shift in the burden of proof had developed in case law for non-gender employment and non-employment complaints as well: Bailieborough Community School v Carroll, DEE 4/1983 Labour Court; Dublin Corporation v Gibney EE 5/1986 Equality Officer; Ross v Royal & Sun Alliance Insurance Plc ES/2001/164, [7.2]–[7.4]. See also 112.

[108] European Council Burden of Proof Directive 1997/80/EC, art 4(1). The Directive was recently restated: see EC Recast Directive 2006/54/EC, which replaces the Burden of Proof Directive as of 15 August 2009. The 1997 Directive codified earlier principles developed by the European Court of Justice and extended them from equal pay to equal treatment: Vasiliki Nikoloudi v Organismos Tilepikinonion Ellados AE (C-196/02) [2005] ECR I-01789, [69].

[109] European Council Racial Equality Directive 2000/43/EC, art 8. See also European Council Employment Equality Directive 2000/78/EC, art 10.

[110] Sex Discrimination Act 1975 (UK) c 65, ss 63A, 66A; Race Relations Act 1976 (UK) c 74, ss 54A, 57ZA; Disability Discrimination Act 1995 (UK) c 50, s 17A(1C); Race Relations (Northern Ireland) Order 1997 NI 6, art 52A; Sex Discrimination (Northern Ireland) Order 1976 NI 15, arts 63A, 66A.

[111] Employment Equality Act 1998–2004 (Ireland) s 85A.

[112] See discussion in Ross v Royal & Sun Alliance Insurance Plc ES/2001/164, [7.2]–[7.4]. Carol Ann Woulfe said that codifying the shift in Ireland has not changed things dramatically for the complainant, only that it is easier to establish because the shift is now clearly in the legislation: Interview with Carol Anne Woulfe, Solicitor, Equality Authority (Dublin, 26 September 2007). See also above n 106.

[113] Madarassy [2007] EWCA Civ 33, [60]. See also Mitchell v Southern Health Board [2001] ELR 201.

[114] Igen [2005] EWCA Civ 142; [2005] ICR 931, [31] (emphasis added).

[115] Michael Connolly, ‘Recent Legislation — The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 (S.I. 2001 No 2260)’ (2001) 30 Industrial Law Journal 375, 377, arguing that formalising the burden of proof will have little practical effect in discrimination cases. See also discussion of responses to an earlier European Council proposal to shift the burden, which expresses a similar opinion: Ross, above n 104, 101–104.

[116] See, eg, Igen [2005] EWCA Civ 142; [2005] ICR 931, [18]; Madarassy [2007] EWCA Civ 33, [60].

[117] Igen [2005] EWCA Civ 142; [2005] ICR 931, [18].

[118] Hepple, Coussey and Choudhury, above n 64, 102.

[119] The guidelines were based on an earlier decision of the Employment Appeal Tribunal, Barton v Investec Securities Ltd [1991] EWCA Civ 16; [1992] ICR 516. The Court of Appeal approved, with slight modification, the Tribunal’s similar guidance on the operation of the shift in the burden of proof.

[120] Igen [2005] EWCA Civ 142; [2005] ICR 931, [76].

[121] Laing v Manchester City Council [2006] UKEAT 0128_06_2807; [2006] IRLR 748, [59]. The absence of an adequate explanation is relevant if the complainant establishes a prima facie case: Madarassy [2007] EWCA Civ 33, [58].

[122] Igen [2005] EWCA Civ 142; [2005] ICR 931, [17].

[123] Ibid [18]. See also Madarassy [2007] EWCA Civ 33, [69]–[72].

[124] Igen [2005] EWCA Civ 142; [2005] ICR 931, [76].

[125] Laing v Manchester City Council [2006] UKEAT 0128_06_2807; [2006] IRLR 748, [77].

[126] Igen [2005] EWCA Civ 142; [2005] ICR 931, [76], approving Barton v Investec Securities Ltd [1991] EWCA Civ 16; [1992] ICR 516. See also Naomi Cunningham, ‘Discrimination Through the Looking-Glass: Judicial Guidelines on the Burden of Proof’ (2006) 35 Industrial Law Journal 279.

[127] [1971] USSC 46; 401 US 424 (1971) (‘Griggs’).

[128] The Commonwealth and Queensland, as discussed above.

[129] Griggs, [1971] USSC 46; 401 US 424 (1971), 432.

[130] Race Relations Act 1976 (UK) c 74, para 1(1)(b); Sex Discrimination Act 1975 (UK) c 65, para 1(1)(b). The Disability Discrimination Act 1995 (UK) c 50 does not prohibit indirect discrimination.

[131] Employment Equality Act 1977 (Ireland) para 2(c). Now see Employment Equality Act 1998–2004 (Ireland) ss 22, 31. For non-employment complaints, see Equal Status Act 2000–2004 (Ireland) para 3(1)(c).

[132] Hampson v Department of Education and Science [1990] 2 All ER 25, 34, adopting the European Court of Justice’s decision in Bilka-Kaufhaus v Weber von Hartz (Case 170/84) [1986] ECR 1607. The test was approved by the House of Lords in Webb v EMO Air Cargo (UK) Ltd [1992] UKHL 15; [1992] 4 All ER 929.

[133] The law was amended with regard to direct and indirect discrimination, but only in relation to the Directive grounds and only in employment, so the original definitions still apply to some grounds under the Race Relations Act 1976 (UK) c 74 and the Sex Discrimination Act 1975 (UK) c 65. Thus, there are currently multiple tests operating. See also Colm O’Cinneide, Executive Summary: United Kingdom Country Report on Measures to Combat Discrimination (2007) 27–31.

[134] Race Relations Act 1976 (UK) c 74, s 1(1A); Sex Discrimination Act 1975 (UK) c 65, para 1(2)(b).

[135] O’Cinneide, above n 133, 30. As of May 2009, there were no reported decisions by higher courts interpreting the new definition.

[136] Perera v Civil Service Commission (No 2) [1983] IRLR 166. See also Connolly, above n 115, 377–380.

[137] Woulfe, above n 112. Unlike the United Kingdom, Ireland has a specialist tribunal for hearing discrimination complaints.

[138] Madarassy [2007] EWCA Civ 33, [5]. This was the ground of appeal in Madarassy and the two cases heard with it.

[139] Ibid [6].

[140] Igen [2005] EWCA Civ 142; [2005] ICR 931, [76] (Guideline 9). See also Igen [2005] EWCA Civ 142; [2005] ICR 931, [29].

[141] Ibid [76] (Guidelines 3–7).

[142] O’Cinneide, above n 73. Fiona Palmer also states that early indications from European Council Member States were that establishing a prima facie case remained an obstacle for complainants: Fiona Palmer, ‘Re-dressing the Balance of Power in Discrimination Cases: The Shift in the Burden of Proof’ (2006) 4 European Anti-Discrimination Law Review 23, 28.

[143] Madarassy [2007] EWCA Civ 33, [85]–[99].

[144] Ibid [56]–[58]; Nathan v Bailey Gibson [1998] 2 IR 162, 178.

[145] See also discussion in Michael Connolly, Townshend-Smith on Discrimination Law: Text, Cases and Materials (2nd ed, 2004) 257–273.

[146] See, above n 108, n 109.

[147] See, eg, decisions from the South African Constitutional Court. For example, City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC); President of the Republic of South Africa and Another v Hugo 1997 (6) BCLR 708 (CC).

[148] To assist complainants it could not represent, the Equality Commission for Northern Ireland developed sample questionnaires, such as a pregnancy dismissal questionnaire: Kitson, above n 64.

[149] Forms in equal status complaints are not prescribed by law. The Equality Tribunal produced a standard notification form and a guide for complainants (‘Form ES.1’) and one to assist respondents (‘Form ES.2’), available at The Equality Tribunal, Ireland, <http://www.equalitytribunal.ie/index.asp?locID=6 & docID=-1> at 24 September 2009.

[150] Galbraith-Marten, above n 80. Employers in Northern Ireland are required to collect information on workplace composition: Fair Employment and Treatment (Northern Ireland) Order 1998 NI 21, Part VII. Public authorities in the United Kingdom are also required to collect information in relation to the positive duty to promote equality. See, eg, Northern Ireland Act 1998 (UK) c 47, s 75.

[151] For example, statistical information is collected about the Commonwealth and state public services. See, eg, Public Service Act 1999 (Cth) s 44; Equal Opportunity in Public Employment Act 1992 (Qld) s 7. Other organisations are not required to collect data unless they are covered by the Equal Opportunity for Women in the Workplace Act 1999 (Cth), which only requires employers to collect information about gender.

[152] Madarassy [2007] EWCA Civ 33, [5].

[153] Queensland Courts and the Federal Court.

[154]Specifically, the tests for identifying a comparator and establishing causation in a direct discrimination complaint and showing proportionality and establishing reasonableness in an indirect discrimination complaint. See above n 8.

[155] See above n 44–52.

[156] See above n 17–26.

[157] See above n 27–41.