5. Proving a discrimination claim

Once a worker has established that there has been less favourable treatment, it is up to the employer to prove there was no discrimination. This amounts to a “shifting” burden of proof — in other words, where the worker makes the original case but then the employer has to prove there was no discrimination. The law says that where the worker proves facts from which the tribunal could conclude “in the absence of an adequate explanation”, that there has been less favourable treatment, the complaint will be upheld unless the employer proves that they did not discriminate.

The law makes it clear that the tribunal can conclude that there was discrimination if there is no acceptable reason for less favourable treatment. This is commonly referred to as the tribunal’s ability to “infer” discrimination. The case that initially established this principle is that of King v The Great Britain-China Centre [1991] IRLR 513.

Since the King ruling, the courts have dealt with many other cases concerning the issue of inferring discrimination. These have resulted in a widening of the duty on the employer to prove there was no discrimination and greater powers on the tribunals to infer discrimination.

The most important decision has been that of Igen Ltd & others v Wong; Webster v Brunel University; Emezie v Emokpae [2005] EWCA 142 ([2005] IRLR 258). In those joined cases the Court of Appeal decided that once a claimant has shown that there could be discrimination, their claim will be upheld unless the employer can offer an adequate alternative explanation for the difference in treatment. The Court also clarified that the employer must show that the treatment was “in no sense whatsoever” on grounds of sex, race or disability, rather than that it was “not significantly influenced by” sex, race or disability.

The EAT’s judgment in Barton v Investec Henderson [2003] IRLR 332 is also helpful. The EAT ruled that the clear tests are:

• for the worker to prove that discrimination (less favourable treatment) has taken place or, where the worker does not have sufficient evidence to prove it, where there is enough evidence for the tribunal to infer discrimination;

• once this has happened the employer has to prove, on the balance of probabilities, that there was no discrimination.

In an example of a case where the tribunal was able to infer discrimination from the facts, a worker showed that she had been paid her bonus late, had not been invited to an important social function and there was a delay in hearing an appeal. All of these events took place after the worker had told her employer that she had a disability. That was enough for the tribunal to infer discrimination.

Other examples where tribunals have inferred discrimination are:

• being dismissed after asking for a pay increase on finding out that an employee of the opposite sex was getting more; and

• being told to attend a disciplinary hearing while off sick for stress (Rowden v Dutton Gregory [2002] ICR 971).

One important point to note, in cases where more than one form of discrimination is alleged, is that each has to be proved separately. In the case of The Law Society v Bahl [2003] IRLR 640, the employee alleged race and sex discrimination. The tribunal could not infer from the facts that either had occurred and therefore could not, looking at both claims together, infer that discrimination must have been present.

Dual discrimination

Under section 14(1) of the Equality Act 2010 (EA 10) — a provision which is opposed by the coalition government elected in 2010 and has therefore not been brought into force — someone would be able to bring a claim if they were to suffer less favourable treatment than another on the basis of two protected characteristics. For example, if this section ever were to come into force, a candidate would be able to claim if she is rejected for a job both because she is of black ethnic origin and a woman.

Additionally, a black woman would be able to compare her treatment against that of a white female colleague and a black male colleague — important if there is no adequate direct comparator (in this example, a white man). Only direct discrimination, as opposed to indirect discrimination, harassment or victimisation, would be actionable under this section.

While the Equality Act 2010 would make discriminatory behaviour based on two characteristics unlawful, it would not permit claims to be brought on three or more characteristics. For example, the legislation is not specifically constructed to assist a job applicant who is turned down for a post because she is of black ethnic origin, a woman, and a lesbian. However, although multiple discrimination based on three or more protected characteristics was not expressly covered by Parliament, an individual would still be able to bring three separate claims of discrimination — one dual discrimination claim together with a single strand discrimination claim which could be pleaded in the alternative — that is if one of the claims or defences are held invalid or insufficient, the other claims or defences should still have to be answered.

The questionnaire procedure

Because the law accepts that sometimes it is difficult for a worker to get enough evidence to prove that there has been less favourable treatment, a “questionnaire procedure” exists under The Equality Act 2010 (Obtaining Information) Order 2010 (EAOI 10). This gives workers the legal right to serve questions on their employer to try and obtain answers that might help them decide whether or not there has been less favourable treatment, usually before a claim has been lodged or 28 days thereafter. See http://www.legislation.gov.uk/uksi/2010/2194/schedule/1/made for a copy of the questionnaire specified by EAOI 10.

Workers can use this to get information on what terms and conditions other workers have. If the employer does not reply, or if their replies are inadequate in the view of the court or tribunal, it may draw adverse inferences, including an inference that discrimination did take place, if appropriate.

Disability discrimination

The nature of disability discrimination means that individuals have first to show that they fall within the definition of a disabled person. This is defined in section 6 of the Equality Act 2010 (EA 10) as where a person has a physical or mental impairment that has a substantial and long-term adverse impact on the individual’s ability to carry out normal day-to-day activities.

In most cases the worker will produce medical evidence in support of the claim that s/he is disabled. Where the evidence is not contested by the employer or rejected by the tribunal, it has to take the evidence into account (Kapadia v LB Lambeth [2000] IRLR 699). However, where the evidence is contested by medical evidence produced by the employer, the tribunal has to weigh both up and decide between them.

The tribunal will not normally take into account what has caused the disability once it is shown to come within the definition. Although the legislation specifically excludes alcohol and drug addiction from the definition of a disability, a person suffering from clinical depression brought on by addiction to alcohol can still claim protection under the EA 10 (Hutchinson 3G v Mason UKEAT/0369/03).

The test is whether the disability has a substantial impact. This is for the tribunal to assess, it is not determined by a medical assessment.

For disability discrimination claims to succeed the worker needs to show, not only that there is a disability, but that it is “long term”. Long-term means an effect that has lasted or is likely to last for a year or more. However, an individual does not have to be disabled for as long as a year to claim, provided that the disability is likely to last that long or is recurring (Greenwood v BA [1999] IRLR 600). The effect of any medication or other treatment is ignored when assessing the effects of an impairment.

If an impairment is recurring, it will be regarded as “long-term” if the substantial adverse effect is likely to recur. For example, someone with rheumatoid arthritis may have adverse effects for a few weeks; if the effects then stop but are likely to recur more than 12 months after the first occurrence, they are long-term. The focus is on whether the substantial adverse affect, rather than the impairment itself, is likely to recur (Swift v Chief Constable of Wiltshire Constabulary EAT/484/03 ([2004] IRLR 540)).

In SCA Packaging Ltd v Boyle and Equality and Human Rights Commission (Intervener) [2009] IRLR 746, the House of Lords considered the meaning of “likely” in disability discrimination law:

Reasonable adjustment

Once it is established that a person is disabled, the employer (including a prospective or ex-employer) is under a duty to make reasonable adjustments to accommodate their disability. Specifically:

• where a provision, criterion or practice puts a disabled person at a substantial disadvantage, an employer must take such steps as is reasonable to avoid the substantial disadvantage: section 20(3) of the Equality Act 2010 (EA 10) — for example re-allocating duties, altering hours, transferring a newly disabled person (or a person whose disability has worsened) into a more suitable existing vacancy;

• where a disabled person would, but for the provision of an auxiliary aid such as adapted telephone or computer equipment, text to speech software, a sign language interpreter, be at a substantial disadvantage, an employer must take such steps as is reasonable to provide the aid — for example, providing information in an accessible format: section 20(5) of the EA 10; and

• where a physical feature (such as steps, emergency escape routes, signs and so on) puts a disabled person at a substantial disadvantage, an employer must take such steps as is reasonable to avoid the disadvantage: section 20(4) of the EA 10 — for example, inviting the disabled worker to work in a ground floor office or from home, modifying a building for a wheelchair user.

The disadvantage must be substantial — meaning more than minor or trivial: section 212(1) of the EA 10. However, an employer that does not consider making any adjustments is very vulnerable to a disability discrimination claim.

The duty to make reasonable adjustments can even require an employer to treat a disabled worker more favourably than other staff:

Additionally, just because an employer has made some reasonable adjustments, does not mean that they are exempted from making further reasonable adjustments. For example:

There is no requirement to do something that would not meet the test of reasonableness, however, if an adjustment is reasonable, an employer will not be able to justify not making it. What is reasonable will depend on all the circumstances of the situation. Factors such as cost (the employer will not be able to pass on the cost of making adjustments to the employee, unless there is an express agreement to the contrary), the resources available to the organisation, and the impact on the health and safety of others, can be taken into account.

A disabled person wishing to complain that his or her employer is guilty of disability discrimination, need not compare his or her treatment with anyone else. In other words, cases of reasonable adjustment do not require claimants to identify comparators.

Finally, the employer might try to claim that it did not know, nor could reasonably be expected to know, that the individual was disabled: Schedule 8, para 20(1). Whether an individual formally discloses to their employer that they are suffering from a disability (where it is not already obvious) may therefore be a significant decision. Although employees are entitled to keep their personal lives private, employers cannot escape liability for disability discrimination by not making reasonable enquiries. For example: