E-mails that provided the proof

February 19, 2002

Last month Julie Bower was awarded Ј1.4 million by her former employer, Schroders Investment Management, on the ground of sex discrimination. Two weeks ago, Rachel Walker, a black secretary who sued law firm Charles Russell, was awarded a substantial payout, this time on grounds of race and sex discrimination.

There is a common thread to both cases: the crucial evidence was captured on e-mail. The case against Charles Russell is thought to be the first arising from a discriminatory e-mail; and in the Bower case, e-mails were cited as clear evidence of management motives. Both show how easily e-mails can land an employer in trouble and copies of e-mails are now routinely requested with other relevant documents in discrimination cases.

So employers must ensure their e-mail policies state clearly that offensive and discriminatory e-mails will not be tolerated. They also need to discipline those who send them — particularly important since the burden of proof was reversed last year, making it easier for employees to win claims. This means that once an applicant has put forward a prima facie case of sex discrimination, the tribunal will uphold the claim unless the employer proves he did not commit the alleged discriminatory act. Before, tribunal could infer discrimination if there was no satisfactory explanation from the employer, but it was not automatic.

In race cases, the burden of proof still rests on the employee. But that is set to change next year when the UK implements the Race Discrimination Directive, as mentioned in the Government consultation paper, “Towards Equality and Diversity” issued last December. New figures this week show a fresh surge in tribunal claims: employers must take note — a careless or casual e-mail can cost them dear.

The author is principal and head of employment group at Withers