Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant had to establish facts allowing the tribunal to conclude, in the absence of an adequate explanation, that an unlawful act of discrimination had taken place. If that was established, the respondent was to establish that he did not commit the unlawful act. Though the Barton guidance was important, the courts must take the law from the statutes. The court set out 13 additional considerations. Once an employee has established a prima facie case of discrimination by showing that there is prima facie evidence to the effect that he/she has been treated less favourably than a relevant comparator the burden of proof transfers to the employer. If he is to escape liability the employer must then prove on the balance of probabilities that the less favourable treatment complained of was not on the grounds of race.
Peter Gibson LJ said: ‘The statutory amendments clearly require the employment tribunal to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.’
‘It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such evidence, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that he or she would not have fitted in.’
Lord Justice Peter Gibson Lord Justice Kennedy Lord Justice Scott Baker Lord Justice Peter Gibson Lord Justice Kennedy Lord Justice Scott Baker
[2005] EWCA Civ 142, Times 03-Mar-2005, [2005] IRLR 258, [2005] ICR 931, [2005] 3 All ER 812
Bailii
Sex Discrimination Act 1975 63A, Disability Discrimination Act 1995, Race Relations Act 1976 54A, Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (2001 no 2660), Race Relations Act 1976 (Amendment Regulations) 2003 (2003 no 1626), Disability Discrimination Act 1995 (Amendment) Regulations 2003 (2003 No 1673), Employment Equality (Religion or Belief) regulations 2003 (2003 No 1660)
England and Wales
Citing:
On appeal from – G Webster v Brunel University EAT 14-Dec-2004
EAT Race Discrimination
Novel point decided that the Employment Tribunal erred in concluding that, in a case where there was an issue as to whether the act complained of was by the Respondent (i.e. by . .
On Appeal from – Chamberlin Solicitors v Emokpae EAT 15-Jun-2004
. .
On Appeal from – Igen Ltd (Fomerly Leeds Careers Guidance) and others v K Wong EAT 5-Apr-2004
EAT Race Discrimination
Burden of proof in Race Relations Act 1976 s 54A. Whether a prima facie case had been made to transfer the burden. Application of Barton v Investec. . .
Applied – Barton v Investec Henderson Crosthwaite Securities Ltd EAT 6-Mar-2003
EAT Sex Discrimination – Inferring Discrimination
The claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay.
Held: The new . .
Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
Cited by:
Appealed to – Igen Ltd (Fomerly Leeds Careers Guidance) and others v K Wong EAT 5-Apr-2004
EAT Race Discrimination
Burden of proof in Race Relations Act 1976 s 54A. Whether a prima facie case had been made to transfer the burden. Application of Barton v Investec. . .
Cited – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Cited – Barracks v Coles and Commissioner of Police for the Metropolis CA 21-Jul-2006
The claimant sought to allege race discrimination and appealed refusal by the respondents to release required documents. She had been turned down for an appointment to the Trident task force, and sought disclosure of the reasons. The respondent said . .
Cited – Brown v London Borough of Croydon and Another CA 26-Jan-2007
The claimant appealed dismissals of his claim for race discrimination, harassment and victimisation. In a new job, other team members said they were uncomfortable alone with him, and his probationary period was extended because of his failure to fit . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Cited – Atabo v Kings College London and others Newman, Methven, Law CA 19-Apr-2007
The claimant sought leave to appeal dismissal of her claim for discrimination, saying that the EAT had missapplied the test in Madarassy and associated cases on the burden of proof.
Held: ‘the applicant did not make out a prima facie case of . .
Cited – High Quality Lifestyles Ltd v Watts EAT 10-Apr-2006
EAT The Employment Tribunal had erred in its construction of direct discrimination under s3A(5) of the Disability Discrimination Act 1995 as amended when it failed to construct a correct hypothetical comparator . .
Cited – Secretary of State for Defence v Lance Corporal (Now Corporal) Duncan and Another CA 12-Oct-2009
The servicemen had challenged the awards made to them for injuries suffered in service. The SSD now appealed.
Held: The awards had been increased when it became clear that the SD had failed to take account of some elements of the injuries . .
See Also – Brunel University and Another v Webster and Vaseghi CA 22-May-2007
The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive . .
Cited – Fecitt and Others v NHS Manchester EAT 23-Nov-2010
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Cited – Transport for London and Another v Aderemi EAT 4-Nov-2011
EAT RACE DISCRIMINATION
Direct and Victimisation
Burden of Proof
The Employment Tribunal conflated the two concepts of firstly less favourable treatment and secondly whether there was a prima facie . .
Cited – Bivonas Llp and Others v Bennett EAT 31-Jan-2012
bivonas_EAT2012
EAT Sexual Orientation Discrimination or Transexualism – The Employment Tribunal correctly applied the law relating to detriment in a case of sexual orientation discrimination; see Shamoon v Chief Constable of . .
Cited – Grampian Health Board v Hewage EAT 4-Feb-2009
EAT SEX DISCRIMINATION: Burden of proof
RACE DISCRIMINATION: Inferring discrimination
Tribunal found Claimant to have suffered both sex and race discrimination in course of her employment as a . .
Cited – NHS Manchester v Fecitt and Others CA 25-Oct-2011
The appellant challenged reversal by the EAT of a finding that it had not unlawfully victimised the respondents for the making of a protected disclosure. The claimant had reported a co-worker exaggerating his qualifications. After repeated . .
Cited – Cass v Amt-Sybex (Northern Ireland) Ltd NIIT 26-Jan-2011
The decision of the tribunal is that the respondents’ application for costs is refused. . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Employment
Leading Case
Updated: 10 November 2021; Ref: scu.223101