Burden of proof and presumption of discrimination
Dividing the burden of proof and presumption of discrimination
The applicant has to present likely reasons based on which it can be presumed that discrimination took place. A presumption of discrimination arises if the person suspecting discrimination can prove that they were more qualified for the job than the person of the opposite gender who was selected. If the applicant was pregnant or on family leave at the time, the comparison can also be made with a person of the same gender. In order to disprove the presumption, the employer must demonstrate that their actions were due to another acceptable reason, and not the applicant's gender.
Is it possible to favour one gender over the other in recruitment?
Temporary, planned special measures to promote effective gender equality are not to be considered discrimination based on gender (section 9(4) of the Equality Act). On certain conditions it is possible to favour applicants the underrepresented gender in recruitment if this is based on a plan.
This is called positive action, and it is only allowed in EU case-law when the female and male applicants are as qualified or nearly as qualified as each other, provided that all particular matters related their person are taken into objective consideration when their applications are assessed. One gender cannot be favoured automatically. (See the rulings of the European Court of Justice in the following cases: Marschall C-409/95, 11.11.1997, Badeck C-158/97, 28.3.2000 and Abrahamsson C-407/98, 6.7.2000). The aim of positive action must always be to promote effective equality.
The discriminated party's right to demand compensation
A person has the right to demand compensation from the employer in court if they have been discriminated against during recruitment Compensation can be demanded whether or not a complaint has already been made on the decision or conduct that is suspected of being discriminatory.
Assessing the measures that preceded the hiring decision
The prohibition of discrimination in section 8, as presented above, will primarily become applicable when the employer has made their final decision on selecting a person for a position or a task. Regarding the measures that preceded the hiring decision, the conduct of the employer can be assessed under the general prohibition of discrimination in section 7 of the Equality Act. Such measures can be for example choosing applicants for interviews and aptitude tests. According to the legislation currently in effect, violations of section 7 of the Equality Act do not, however, give the right to compensation.