A very recent significant judgment from the EAT has somewhat surprisingly slipped under the radar. This fundamentally changes the approach to discrimination claims brought by employees, in that the EAT has made it clear, contrary to traditional thinking, that there is no burden on a Claimant employee to prove the discrimination alleged. Indeed it is for the Respondent employer to produce evidence to establish facts and/or a reasonable explanation so that the Tribunal does not make an inference of discrimination.
In essence this is akin to a “guilty until proven innocent” scenario. Until now there was quite a high burden placed on Claimants to prove facts based upon which, in the absence of an explanation from the Respondent, a Tribunal could infer that discrimination had occurred. If they did this, the burden shifted to the Employer to show the reasonable explanation and that this meant discrimination should not be inferred. If the Claimant couldn’t shift the burden in this manner, their claim would fail. This approach was based on the wording under the historic discrimination legislation. The Equality Act 2010 changed this because it is worded differently, but it has taken until now for the first appeal decision on the point to clarify that.
The correct approach for the Tribunal now, is simply to hear all of the evidence, not just from the Claimant, and make findings of fact at the end of the entire hearing, and decide whether or not in all the circumstances, it can conclude that discrimination has occurred. This is likely to place a much higher burden on Respondent employers and means that evidence on all of the circumstances will need to be adduced, in order that a decision can be reached by the Tribunal. This also probably means that certain hearings will be longer than previously they would have been and therefore more expensive.
It was also made clear by the EAT in this particular case, that if a Respondent fails to adduce evidence within its knowledge, without explanation, then it runs the risk that the Tribunal will draw adverse inferences and from which a conclusion that discrimination has occurred could be reached.
This development does not give carte blanche to unmeritorious discrimination claims, however, it undoubtedly will make the job harder for Respondent Employers to defend discrimination claims and underlines ever more the importance of good record keeping, good policies and procedures, as well as submitting full evidence and thoroughly preparing Responses to claims brought.
If you would like further information or assistance about this or any other employment issues then please contact Julian Outen, Partner, Ellisons Solicitors, DDN 01473 556900, E: email@example.com.