Statutory Rule 2001 No. 282

Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001

---

© Crown Copyright 2001

Statutory Rules of Northern Ireland printed from this website are printed under the superintendence and authority of the Controller of HMSO being the Government Printer for Northern Ireland.

The legislation contained on this web site is subject to Crown Copyright protection. It may be reproduced free of charge provided that it is reproduced accurately and that the source and copyright status of the material is made evident to users.

It should be noted that the right to reproduce the text of Statutory Rules of Northern Ireland does not extend to the Government Printer for Northern Ireland imprints which should be removed from any copies of the Statutory Rule which are issued or made available to the public. This includes reproduction of the Statutory Rule on the Internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document.

The text of this Internet version of the Statutory Rule which is published by the Government Printer for Northern Ireland has been prepared to reflect the text as it was Made. A print version is also available and is published by The Stationery Office Limited as the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001, ISBN 0 33794010 X. The print version may be purchased by clicking here. Braille copies of this Statutory Rule can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail:customer.services@tso.co.uk.

Further information about the publication of legislation on this website can be found by referring to the Frequently Asked Questions.

To ensure fast access over slow connections, large documents have been segmented into "chunks". Where you see a "continue" button at the bottom of the page of text, this indicates that there is another chunk of text available.

" Direct and indirect discrimination against women
     3.  - (1) In any circumstances relevant for the purposes of any provision of this Order, other than a provision to which paragraph (2) applies, a person discriminates against a woman if - 


(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

(b) he applies to her a requirement or condition which he applies or would apply equally to a man but - 


(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it,

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to her detriment because she cannot comply with it.



    (2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if - 



(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but - 


(i) which is such that it would be to the detriment of a considerably larger proportion of women than of men,

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to her detriment.



    (3) Paragraph (2) applies to - 



(a) any provision of Part III, and

(b) any provision of Part IV, so far as it applies to vocational training.



    (4) If a person treats or would treat a man differently according to the man's marital status, his treatment of a woman is for the purposes of paragraph (1)(a) or (2)(a) to be compared to his treatment of a man having the like marital status.".

Discrimination against married persons
     3. For Article 5 of the Order there is substituted - 

" Direct and indirect discrimination against married persons in employment field
     5.  - (1) In any circumstances relevant for the purposes of any provision of Part III, a person discriminates against a married person of either sex if - 


(a) on the ground of his or her marital status he treats that person less favourably than he treats or would treat an unmarried person of the same sex, or

(b) he applies to that person a provision, criterion or practice which he applies or would apply equally to an unmarried person, but - 


(i) which is such that it would be to the detriment of a considerably larger proportion of married persons than of unmarried persons of the same sex,

(ii) which he cannot show to be justifiable irrespective of the marital status of the person to whom it is applied, and

(iii) which is to that person's detriment.



    (2) For the purposes of paragraph (1), a provision of Part III framed with reference to discrimination against women shall be treated as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite.".

Burden of proof: industrial tribunals
     4. After Article 63 of the Order there is inserted - 

" Burden of proof: industrial tribunals
     63A.  - (1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

    (2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent - 


(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part III, or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant,



the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.".

Burden of proof: county court
     5. After Article 66 of the Order there is inserted - 

" Burden of proof: county court
     66A.  - (1) This Article applies to any claim brought under Article 66(1) in a county court.

    (2) Where, on the hearing of the claim, the claimant proves facts from which the court could, apart from this Article, conclude in the absence of an adequate explanation that the respondent - 


(a) has committed an act of discrimination against the claimant which is unlawful by virtue of any provision of Part IV, so far as it applies to vocational training, or

(b) is by virtue of Article 42 and 43 to be treated as having committed such an act of discrimination against the claimant,



the court shall uphold the claim unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.".

Claims under Part IV of the Order so far as it applies to vocational training
     6. After Article 66(3) of the Order there is inserted - 

    " (3A) Paragraph (3) does not affect the award of damages in respect of an unlawful act of discrimination falling within Article 3(2)(b).".

Consequential amendments of the Order
     7.  - (1) The following amendments to the Order shall also have effect.

    (2) In Article 2(2) after the definition of "proprietor" there is inserted - 

" "provision, criterion or practice" includes requirement or condition;".

    (3) In Article 7[5], for "Article 3(1)" there is substituted "Article 3(1) or (2)".

    (4) In Article 38, for paragraph (1) there is substituted - 

    " (1) In this Article "discriminatory practice" means - 


(a) the application of a provision, criterion or practice which results in an act of discrimination which is unlawful by virtue of any provision of Part III or IV taken with Article 3(2)(b) or 5(1)(b) or which would be likely to result in such an act of discrimination if the persons to whom it is applied were not all of one sex, or

(b) the application of a requirement or condition which results in an act of discrimination which is unlawful by virtue of any provision of Part IV taken with Article 3(1)(b) or which would be likely to result in such an act of discrimination if the persons to whom it is applied were not all of one sex.".

    (5) In Article 65(1B)[6] of the Order

(a) for "Article 3(1)(b)" there is substituted "Article 3(2)(b)" and

(b) for "requirement or condition" there is substituted "provision, criterion or practice".

Amendment of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1990
     8. In Article 3 of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1990[7] (overriding of statutory requirements which conflict with certain provisions of the Order), in paragraph (3) - 

(a) for "requirement or condition", wherever occurring, there is substituted "provision, criterion or practice",

(b) for "paragraph (1)(b)(i) of Article 3 or 5" there is substituted "Article 3(2)(b)(i) or 5(1)(b)(i)",

(c) in sub-paragraph (a) for "paragraph (1)(b)(ii) of that Article" there is substituted "Article 3(2)(b)(ii) or 5(1)(b)(ii) of that Order", and

(d) in sub-paragraph (b) for "paragraph (1)(b)(ii)" there is substituted "Article 3(2)(b)(ii) or 5(1)(b)(ii)".

Sealed with the Official Seal of the Office of the First Minister and deputy First Minister on


20th July 2001.

L.S.

Seámus Mallon

Reg Empey

[2] See the European Communities (Designation) (No. 3) Order 1999 (S.I. 1999/2788)back

[3] 1954 c. 33 (N.I.)back

[4] S.I. 1976/1042 (N.I. 15)back

[5] Article 7 was amended by Regulation 2(2) of the Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999 (S.R. 1999 No. 311)back

[6] Article 65(1B) was inserted by Regulation 2(4) of the Sex Discrimination (Amendment) Regulations (Northern Ireland) 1996 (S.R. 1996 No. 418)back

[7] S.I. 1990/246 (N.I. 2)back