The burden of proof then passes to the employer for an explanation at the second stage.
In Laing -v- Manchester City Council (IDS 814), the Employment Appeal Tribunal (EAT) has confirmed that a tribunal does not always have to go through both stages if it is satisfied, from all the facts, that the employer did not discriminate against the claimant.
What were the basic facts?
Mr Laing started work as a community support officer for the council in April 2004.
Initially things went well but as the pressure increased, his performance started to deteriorate as did his relations with other members of staff.
After a meeting in June to discuss his attitude, things improved again. However, Mr Laing remained unhappy about the council’s request to have his photograph displayed on a board in the reception area.
He was told in July that his placement as an agency worker would be terminated if he did not agree to this “reasonable management request.”
He then accused one of his managers of race discrimination. The council initiated an independent investigation which concluded that, although the manager lacked management skills, she was not guilty of bullying or harassment.
The council dismissed Mr Laing for refusing to obey a reasonable instruction, for his general attitude, and because of the breakdown of his relationship with his manager. He brought claims of race discrimination and victimisation.
What did the tribunal decide?
The tribunal dismissed his claim of race discrimination, describing him as “a very difficult employee”. Although it agreed his manager lacked adequate management skills, it said that her failings were apparent in her dealings with all staff, not just Mr Laing or, indeed, other black staff.
It also rejected his victimisation claim. Although he was dismissed soon after making allegations of race discrimination, the tribunal accepted the council’s reasons for doing so and decided they were not discriminatory.
What did the EAT decide?
The EAT rejected Mr Laing’s argument that only his evidence (and any from the employer that supported his case) should be considered when deciding whether he had been discriminated against before the burden of proof passed to the employer for an explanation.
Relying on the Court of Appeal case of Igen Ltd -v- Wong, the EAT said it was clear that tribunals have to consider all the facts at this first stage, whether or not some of them undermined the complainant’s case.
The reference in section 54A of the Race Relations Act 1976 to “the claimant proving facts” did not mean that the other side could not do so as well. It just meant that the burden was on the claimant to prove that they had enough of a case before it passed to the employer for an explanation.
In this case, when all the evidence was considered, the fact that Mr Laing’s manager was equally abrupt to all staff, was highly significant. Even if the tribunal was wrong to conclude that Mr Laing had not made out his case of discrimination on the facts, the tribunal had considered the explanation from the employer as to why he was dismissed and concluded that it had nothing to do with race.
The EAT clarified that “ultimately the issue is whether or not the employer has committed an act of race discrimination.
“The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.”
The focus of the tribunal's analysis must therefore always be whether or not they can properly and fairly infer race discrimination.
If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then “that is the end of the matter”.