EAT The applicant, who had been born in India, had made twenty-two unsuccessful applications for promotion. On the last occasion he brought proceedings alleging unlawful racial discrimination and relying on the fact that the person selected had less experience than he had.
Held: Browne-Wilkinson J suggested that in future, industrial tribunals mighft find it easier to forget about the rather nebulous concept of the ‘shift in the evidential burden’. A little later he continued: ‘In this case the industrial tribunal would, we suspect, have found the case rather more straightforward if, looking at all the evidence as a whole, they had simply decided whether the complaint had been established. No useful purpose is served by stopping to reach a conclusion on half the evidence. The right course in this case was for the industrial tribunal to take into account the fact that direct evidence of discrimination is seldom going to be available and that, accordingly, in these cases the affirmative evidence of discrimination will normally consist of inferences to be drawn from the primary facts. If the primary facts indicate that there has been discrimination of some kind, the employer is called on to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the industrial tribunal, an inference of unlawful discrimination from the primary facts will means the complaint succeeds: . . Those propositions are, we think, most easily understood if concepts of shifting evidential burdens are avoided.
So, in this case, the industrial tribunal has drawn the inference of possible discrimination from the fact that there was no obvious reason why the applicant should not have got the job: . . To decide that there has been discrimination in the face of sworn evidence that there was no such discrimination is unpalatable: equally, racial discrimination does undoubtedly exist, and it is highly improbable that a person who has discriminated is going to admit the fact, quite possibly even to himself. The judicial function, however unpalatable, is to resolve such conflicts by a decision if possible.’
Judges:
Browne-Wilkinson J P
Citations:
[1981] ICR 653
Jurisdiction:
England and Wales
Citing:
Discussed – Chattopadhyay v Headmaster of Holloway School EAT 1981
The appellant, an Indian teacher had applied unsuccessfully for the post of head of history at Holloway School. He complained of race discrimination.
Held: Browne-Wilkinson P said: ‘As has been pointed out many times, a person complaining that . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 06 May 2022; Ref: scu.521106