Reversal of the burden of proof
In light of recent case law, consultant
editor Darren Newman asks if the so-called reversal of the burden of proof in
discrimination cases has provided any assistance to claimants.
Because few employers readily admit to unlawful discrimination, claimants are unlikely to have direct evidence showing explicitly that discrimination was the reason for the treatment they suffered. In recent years, the discrimination legislation has been amended to deal with this problem, now providing that a claimant need only prove facts from which the tribunal "could conclude", in the absence of an explanation from the employer, that discrimination has occurred. If the claimant clears this hurdle, the burden passes to the employer to prove that there was no discrimination. This reversal of the burden of proof is central in the fight against discrimination, but the principle is now under attack.
Among the case law reports added to XpertHR this week is Madarassy v Nomura International plc [2007] IRLR 246, in which the key issue for the Court of Appeal was the burden of proof and when it passes to the employer. Ms Madarassy had been made redundant shortly after returning to work from maternity leave, and argued that her employer had become hostile to her from the point she announced her pregnancy. Holding that she had failed to meet the requirements of the first stage, Lord Justice Mummery said "the bare facts of a difference in status and a difference in treatment" were not sufficient grounds from which a tribunal "could conclude" that the employer had committed an unlawful act of discrimination. He went on to suggest that the employee had to show evidence of the actual reason for the differential treatment before any inference of discrimination could be drawn.
In another part of the judgment, Mummery LJ confirmed the position taken by the EAT in Laing v Manchester City Council [2006] IRLR 748 that, when considering whether or not the employee has proven facts from which discrimination could be inferred, the tribunal should also consider evidence brought by the employer. The only evidence excluded from this stage is the employer's explanation for the treatment. This falls to be considered only if the employee clears the hurdle of the first stage.
Putting these two points together, it is difficult to see how the so-called reversal of the burden of proof has helped claimants at all. Indeed, a literal reading of the Court's decision may even leave claimants worse off than before. The employee must provide evidence of the reason for the less favourable treatment and the employer may produce its own evidence - its treatment of others, for example - aimed at undermining the employee's allegations. It is only if the tribunal still finds that a case for discrimination has been made out that there is any need for it to go on to consider the employer's explanation for its treatment of the employee.
Before the burden of proof was formally changed, where there was less favourable treatment and a difference in sex or race, the Court of Appeal decision in King v Great Britain-China Centre [1991] IRLR 513 had placed the focus on the employer's explanation. If the explanation was inadequate, the tribunal would be likely to infer discrimination. Now, according to the Court of Appeal, the tribunal must be minded to infer discrimination before it need look at the employer's explanation.
This surely sets the bar too high. Although many people will have the instinctive reaction to this argument that an employer should be innocent until proven guilty, this is not a question of criminal liability. The question is why an employee has been treated in a particular way, and it is usually the employer that holds all the evidential cards on this question. There is no principled reason why an employer should not be required to prove why decisions were taken in relation to an employee, and demonstrate that they were not discriminatory. That surely was the intention behind the change in the legislation. It is a shame that current case law seems to run counter to this.
