Real Life: How can you prove it's because you're a woman?: Linda Grant asks why so many sex discrimination cases are failing in court

Linda Grant
Saturday 25 July 1992 23:02

'I DON'T think a day has gone past when I haven't thought of Alison Halford,' says Carol Buswell, a university lecturer. 'Our own case lasted six weeks and it was harrowing. It's a very intimidating process, you're on your own giving evidence for days and then there's all the press and the publicity. Emotionally it's very difficult and even if you try to be jolly, your health, both mental and physical, is affected.'

In 1988, Carol Buswell and three other women lecturers at Newcastle Polytechnic took their employer to court, claiming sex discrimination because the college had not appointed or short-listed them for promotion. After what was the longest and most expensive case until that mounted by Alison Halford, the four women received a judgment which spoke of their 'strong, almost obsessive involvement in what they see as the justice of their case.' The applicants were frequently described as 'emotional', a word generally recognised as one which is used to stereotype women. They lost their case.

Something has gone wrong with the Sex Discrimination Act. Although the numbers of cases being brought have increased from 1,577 in 1990 to 3,112 in 1991, few actually reach court - only 365 in 1991. According to an internal report by the Equal Opportunities Commission, only a quarter of those have been won by the applicant. Between January 1986 and mid-1991, out of 114 cases sponsored by the EOC only 27 were successful. Most applicants, like Alison Halford, drop out, unprepared for the stress of the experience and the intrusion into every aspect of their life.

The problem for any woman attempting to bring a case is that the burden of proof is on her to show that first, discrimination took place, and secondly, why it took place - in effect that she did not get the job because she was a woman. Lawyers now acknowledge that sex discrimination is far harder to prove than sexual harassment where physical incidents have taken place. In practice, many employers pay lip-service to equal opportunities, wise to the fact that they can no longer tell a woman point-blank that she can't do a job because of her gender. Instead they point to the woman's personality or 'management style' as being inappropriate for the job.

The Alison Halford case was the first to employ the argument, used successfully in the United States, that discrimination could occur because of 'sex stereotyping' - when a woman in a largely male culture is seen as simply not right for the job because she is not like a man. 'But decisions based on management style and personality are all susceptible to sex stereotyping,' says Alice Leonard, deputy legal officer with the EOC and an expert on discrimination cases. 'Women have different ways of managing from men, and men often have strong views about how women should behave.'

Janise Maloney would agree. Janise, a Chester trade union official who failed to win her case for promotion to regional organiser, was told by her line manager that the job was unsuitable for 'a young mother' because it involved drinking in pubs after meetings with the members.

Janise thought she was well-prepared. She now believes that sex discrimination tribunals can be used as an opportunity for the professional assassination of any woman who presumes to take her employer to court. 'The whole strategy of the defence was to assassinate my character. The argument was that because I wanted to job-share, I wasn't committed. One of the things they repeatedly accused me of was being unable to cope with rejection.'

'Women will put up with a lot in the workplace without saying anything, then a culmination of minor incidents makes them take action,' says Michael Scott, the union lawyer who advised Carol Buswell. When those minor incidents reach court they look like petty grievances, which can be used by opposing barristers to demonstrate the obsessiveness of the applicant, as in Carol Buswell's case. The woman can come to feel like a rape victim whose private life is exposed.

Carol Buswell and Janise Maloney also believe that tribunal members are not sufficiently trained in the way discrimination works. Members are unlikely to hear more than a handful of cases in their lifetimes and few are up-to-date with the latest research in the field. The language used in Carol Buswell's case seems to indicate sex stereotyping in itself.

The legal procedures of tribunals are not only intimidating but can deny access to women who do not have financial backing. Unless a woman is independently wealthy enough to afford the legal fees, in order to get a case off the ground she must be sponsored by her union or the EOC. In effect this means that most sex discrimination cases are taken against large public sector employers with stong unions. An applicant without union support can still apply to the EOC, but its limited funds mean it can only take on a handful of cases that it feels reasonably confident of winning.

Although the Alison Halford case ended not with the expected bang of a judgment but with a long, exhausted whimper of an out-of-court settlement, Alice Leonard of the EOC believes that it has already had a pronounced effect on women in the police. Enquiries from policewomen to the EOC have gone up from 14 to 62 since the Halford application was launched. To Carol Buswell and Janise Maloney, the result of the case was a disappointment but they deeply sympathise with Alison Halford's desire to withdraw.

The larger questions remain about exactly how viable the current legislation is. John Hutton, a former academic and expert in discrimination cases and now Labour MP for Barrow-in-Furness, believes that Alison Halford's case is typical in the stress placed on the applicant. 'What many of us are now arguing is that there should be an easier way. Now, the burden of proof is on the woman. But the employer should have to prove he didn't discriminate. In other countries the procedure is less formal. The reason why there are so few sex discrimination cases here is that very few women are willing to run the emotional and financial risk.'

(Photograph omitted)

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