Determining whether indirect discrimination is intentional

In London Underground Ltd v Edwards the EAT has held that in determining whether an indirectly discriminatory requirement or condition was applied with the intention to treat a woman less favourably on grounds of sex, so as to permit an award of compensation, intention can be inferred from an employer's knowledge of the unfavourable consequences for the claimant as a woman.

Section 66(3) of the Sex Discrimination Act 1975 provides that in a case of unlawful indirect discrimination, "no award of damages shall be made 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."

In this case, in which rostering arrangements requiring work at unsocial hours were alleged to be indirectly discriminatory (see EOR62B) the EAT held that it was open to the industrial tribunal to find that such arrangements were applied with the intention of treating the complainant unfavourably on grounds of her sex.