Equal pay and sex discrimination: New guidance on burden of proof in sex discrimination claims

Key points

• In Barton v Investec Henderson Crosthwaite Securities Ltd 3.4.03 EAT 18/03, the EAT holds that by the insertion of the new section 63A into the Sex Discrimination Act 1975, a "shifting" burden of proof is introduced into sex discrimination claims, making it necessary to set out fresh guidance as to the correct approach for employment tribunals to take (see document extract 1).
• Applying this guidance to the present case, against its background of a lack of transparency in the setting of bonuses and serious failures to deal properly with the SDA questionnaire procedure and the tribunal litigation process, the tribunal should have drawn the necessary inference of discrimination, placing the burden of proof on the employer to prove that sex was not a reason for the less favourable treatment the complainant had received in relation to the setting of bonuses.