Difference in treatment
Labour & European Law Review Weekly Issue 295 15 November 2012
Once a claimant has presented facts from which a tribunal could conclude they have been discriminated against, the burden of proof then shifts to the employer to provide an explanation for the complaint which must cover "something more" than just a difference in treatment and status. In Birmingham City Council and Semlali v Millwood, the Employment Appeal Tribunal (EAT) considered whether an “inadequate explanation” could be the “something more” to shift the burden.
Ms Millwood, who was black, worked in a local authority school as a nursery room leader. In mid-2006, she agreed with the then headteacher that, to avoid a threatened redundancy, she would move into a family support role.
She started in this job at the same time as an Asian worker, Harein Qousar, who was given a contract as a permanent family support worker in December 2006.
Ms Millwood was not offered a permanent post and in July 2007, was told that hers was a seconded role from her old job and was not permanent. When she lost her job in 2008 as an acting nursery manager, she reverted back to her original job and not to the role of family support worker.
She complained of direct race discrimination on the ground that she had been treated less favourably compared to Ms Qousar.
Noting that there was no material difference between the circumstances facing the two women until September 2008, the tribunal decided they could be compared to ascertain if Ms Millwood had been treated less favourably than Ms Qousar.
Having decided that there had been a difference in treatment between them (Ms Qousar had been given a permanent contract as a family support worker and Ms Millwood had not), the tribunal acknowledged that it needed “something more” to justify shifting the burden of proof onto the Council.
As it was not convinced by the Council’s explanation as to why one was given a contract but the other was not, it felt able to conclude that Ms Millwood had been treated less favourably than Ms Qousar from December 2006.
The employer appealed, arguing that the tribunal had not identified the “something more” they were required to find before shifting the burden of proof to them.
The EAT held that the tribunal was right to find that the two women were in similar circumstances and that their situations could therefore be compared.
As to whether it had correctly identified the “something more”, the EAT said that the tribunal had broadly identified that Ms Millwood was treated badly by comparison with Ms Qousar and that it did not accept the explanations that the Council had put forward for her treatment. However, it had not identified in enough detail what the “something more” might be that it was required to set out.
“It might have meant to say, but did not clearly do so, that it was the inadequacies of explanations that it rejected that made the difference, but there is no analysis of that nor full explanation of why that might be so ...”.
It therefore remitted the case to the same tribunal to identify what other facts would justify shifting the burden of proof to the Council.
Cases like Madarassay v Nonura International Plc established that the burden of proof does not shift to the employer just because the claimant can establish a difference in status (e.g. race) and a difference in treatment. In order for the burden to shift there must be “something more”. This case has established that tribunals can take into account inadequate explanations, falling short of dishonest explanations, in determining that "something more".