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Proving discrimination — the burden of proof
[ch 6: pages 197-198]The law recognises that it is very difficult to prove that discrimination has taken place. Decision-makers rarely admit to discrimination and sometimes may not even be aware of it. To help claimants, there are special rules about the burden of proving discrimination. In essence, these rules say that as long as a claimant can establish facts from which a tribunal could conclude, without any other explanation, that discrimination has happened, the burden then shifts to the employer to prove that its treatment of the employee was in no sense whatsoever because of a protected characteristic (Igen Limited v Wong [2005] ICR 931, section 136 EA 10, Hewage v Grampian Health Board [2012] ICR 1054, Khan v Royal Mail Group Ltd [2014] EWCA Civ 1082). More than just a mere difference in treatment is needed in order to shift the burden of proof.
For example, in a claim alleging race discrimination in recruitment, it is not enough simply to show that of two candidates, one black and one white, the white candidate got the job. Something else is needed, such as evidence that the black candidate appeared better qualified than the white candidate. Having established facts from which discrimination could be inferred, the responsibility shifts to the employer to prove that the decision to recruit the white candidate was wholly unrelated to race. This could be, for example, because the white candidate performed better at interview (Brunel University v Killen [2014] UKEAT/0403/13/1403).
The fact that an employer offers several inconsistent explanations can sometimes help shift the burden of proof. So can evidence of lies by the employer’s managers. Unreasonable behaviour on its own is not normally enough to shift the burden of proof on to the employer, but sometimes perversely irrational bad behaviour can be enough, as in this recent example:
Mr Gumbs was black and worked as a refuse sweeper/loader with a caged street refuse vehicle. His manager was Mr Kidd. Gumbs had an ambition to work as an LGV driver. His regular requests for permission to train were refused by Kidd until eventually Gumbs organised and paid for his own training. But Kidd was determined that Gumbs would never be a driver, even though there was a driver shortage. He swore that Gumbs would never be allowed to drive and demoted him to work alone on a street barrow for three days. When Gumbs passed his LGV assessment with “flying colours”, Kidd was reportedly furious. At the employment tribunal, Kidd denied knowing about Gumbs’ ambition to drive despite clear evidence that this was not true. The tribunal said that evidence of inconsistency and untruthfulness, combined with the sheer strength of Kidd’s irrational determination that Gumbs would never achieve his ambition, shifted the burden of proof onto the employer to prove that Kidd’s actions were in no way racially motivated.
Veolia Environmental Services UK v Gumbs [2014] UKEAT 0487/12/0702