Discrimination: Burden of proof finally reversed in direct discrimination claims

In Igen Ltd & ors v Wong; Chamberlin Solicitors & ors v Emokpae; Brunel University v Webster, the Court of Appeal holds:

• The amendments to the Sex Discrimination Act 1975 and Race Relations Act 1976, in order to implement the Burden of Proof Directive (97/80/EC), require a two-stage process to determine direct discrimination. The first stage requires the complainant to prove facts from which the tribunal could, apart from the statutory amendment, conclude in the absence of an adequate explanation that the respondent has, on a balance of probabilities, committed, or is to be treated as having committed, the unlawful act of discrimination.
• The second stage, which is only reached if the complainant has proved those facts, requires an inference of discrimination to be drawn if the respondent fails to prove, on a balance of probabilities, that he did not commit or is not to be treated as having committed the unlawful act. The statutory amendments do not merely codify the existing case law on direct discrimination, they make a substantial alteration: it is "necessary", not "merely legitimate", for the tribunal to conclude that the complaint must be upheld in such circumstances.
• There is no need to divide the hearing into two parts in view of the two-stage test, but whether the respondent's explanations are adequate should be considered at the second stage of the process. In order to allow the burden of proof to shift to the respondent, the tribunal is required to make an assumption, which may not be real, that there is no adequate explanation at the first stage. Furthermore, the tribunal may also take into account the employer's evidence in determining whether or not the complainant has established facts from which inferences can be drawn in the first stage.