Here are the Guidelines approved last week by the Court of Appeal for dicrimination cases .
1 Pursuant to s 63A of the 1975 Act, it was for the claimant who complained of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed an act of discrimination against the claimant which was unlawful by virtue of Part 2 or which by virtue of s 41 or s 42 of the 1975 Act was to be treated as having been committed against the claimant.
2 If the claimant did not prove such facts he or she would fail.
3 It was important to bear in mind in deciding whether the claimant had proved such facts that it was unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination would not be an intention but merely based on the assumption that "he or she would not have fitted in".
4 In deciding whether the claimant had proved such facts, it was important to remember that the outcome at this stage of the analysis by the tribunal would therefore usually depend on what inferences it was proper to draw from the primary facts found by the tribunal.
5 It was important to note the word "could" in s 63A(2). At this stage the tribunal did not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal was looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
6 In considering what inferences or conclusions could be drawn from the primary facts, the tribunal must assume that there was no adequate explanation for those facts.
7 Those inferences could include, in appropriate cases, any inferences that it was just and equitable to draw in accordance with s 74(2)(B) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fell within s 74(2) of the 1975 Act.
8 Likewise, the tribunal must decide whether any provision of the relevant code of practice was relevant and if so take it into account in determining such facts pursuant to s 56A(10) of the 1975 Act. This meant that inferences might also be drawn from any failure to comply with any relevant code of practice.
9 Where the claimant had proved facts from which conclusions could be drawn that the respondent had treated the claimant less favourably on the ground of sex, then the burden of proof moved to the respondent.
10 It was then for the respondent to prove that he had not committed, or as the case might be, was not to be treated as having committed, that act.
11 To discharge that burden it was necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" was compatible with the burden of proof Directive (Council Directive 97/80/EC).
12 That required a tribunal to assess not merely whether the respondent had proved an explanation for the facts from which such inferences could be drawn, but further that it was adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
13 Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal would need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.
Unfortunately, we don't have the luxury of a Personnel Director! 
