In discrimination cases, the law says that the claimant has to identify facts from which a tribunal could conclude that there has been unlawful discrimination, in the absence of an adequate explanation.
The burden of proof then shifts to the employer to prove otherwise. If the (nondiscriminatory) explanation is not adequate, the tribunal has to find the discrimination proven.
The Court of Appeal has now confirmed - in Wong v Igen Ltd and ors, Emokpae v Chamberlin Solicitors and anor, and Webster and ors v Brunel University - that the shifting burden of proof requires tribunals to adopt a two-stage approach. It also approved and strengthened the guidelines issued in Barton v Investec Securities Ltd (2003, ICR 1205). Thompsons were instructed in the Webster case by the AUT.
What was the central issue?
Although the facts in these conjoined appeals were very different, they all raised questions about how to interpret and apply the shifting burden of proof in race and sex direct discrimination cases. The same principle also applies to disability, sexual orientation and religious and belief discrimination cases.
What did the courts decide?
Wong v Igen Ltd: Ms Wong (who was of African-Caribbean origin) was employed by Leeds Careers Guidance. She complained of race discrimination, harassment and victimisation. The tribunal dismissed two of her claims, but held that it could infer discrimination in the absence of an adequate explanation for her third claim. The employment appeal tribunal (EAT) dismissed the employer's appeal, and the appeal court agreed.
Emokpae v Chamberlin Solicitors: Ms. Emokpae (a Nigerian) claimed she had been dismissed because of rumours that she was having a relationship with the office manager. She argued this would not have happened had she been a man. Again, the tribunal went through a two stage process, relying on the Barton guidance. It found in Ms Emokpae's favour and the EAT agreed.
The Court of Appeal concluded that the tribunal had failed to establish the facts from which it could have concluded there had been an unlawful act of discrimination. The case therefore failed at the first stage.
Webster v Brunel University: Ms Webster (who was of Asian origin) was having a telephone conversation with another employee when she heard someone else in the background use the term "Paki". It was not clear whether that person was an employee.
The tribunal said that she had not established facts from which it could conclude that there had been discrimination.
The EAT disagreed, but the Court of Appeal agreed with the employment tribunal. It said that she had to show, on the balance of probabilities, that the respondent had done the unlawful act.
It was not enough, as the EAT had suggested, that there was a possibility that the unlawful act was done by the respondent. It was for Ms Webster to show that the alleged discriminator had treated her less favourably.
Revised guidance
The Court of Appeal also revised the guidance in Barton as follows, to establish a two-stage test
Stage one
1. The claimant has to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an unlawful act of discrimination.
2. At this stage a tribunal should consider what inferences could be drawn from them, and must assume that there is no adequate explanation for them. It must not take the employer's explanation into account at this stage.
Stage two
3. If the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably, then the burden of proof moves to the respondent.
4. It is then for the respondent to prove, on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of race, sex, disability, religion or belief or sexual orientation.