![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201606.jpg)
Proving discrimination — the burden of proof
[ch 7: pages 253-254]The law recognises that it is generally 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 make the position of claimants slightly easier, 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 a mere difference in treatment is needed 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 extra is needed to raise an “inference” of discrimination. This might be clear evidence to show that the black candidate was better qualified than the white candidate. Having established facts from which discrimination could be inferred, the onus then shifts to the employer to prove that their decision to recruit the white candidate was wholly unrelated to race. This could be, for example, because the white candidate performed much 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 management lies. Unreasonable behaviour on its own is not normally enough to shift the burden of proof onto the employer, but occasionally, perversely irrational bad behaviour can shift the burden where there is no other possible explanation, apart from the presence of the protected characteristic. For example:
A white foreman went out of his way to thwart the ambitions of a black refuse sweeper to drive the refuse van, even after the black worker paid for his own training and passed with flying colours, and despite a shortage of drivers. Instead, the foreman demoted and isolated the black operative and told colleagues he would ensure that he never got to drive the vehicle. In evidence, the foreman lied, denying any knowledge of the operative’s ambition to drive the vehicle. A tribunal ruled that his inconsistency, untruthfulness and sheer bloody-minded determination to prevent his black co-worker achieving his ambition was enough to shift the burden of proof onto the employer to show that this behaviour was in no way motivated by race.
Veolia Environmental Services UK v Gumbs [2014] UKEAT 0487/12/0702