Hello. My name is Alice, hard drink. And I welcome you to this data Webinar on the reversal off the burden of proof in discrimination cases. Over the course of the next 30 minutes or so, I'm gonna be taking you on a journey into the well wind. That is how unemployment tribunal approaches a discrimination case. We're going to start as an employment tribunal should do by looking at the wording of section 136 off the Equality Act off 2000 and 10. We're then gonna move on to look at the Barton guidance as approved by the Court of Appeal. In the case of Bajan Long, I'm going to spend a little bit of time looking at post agin developments because there was one important development a few years ago of which we need to know about on. Then look at some practical consequences in terms of real cases. Asato how the burden of proof is dealt with by employment tribunals. So let's then start with section 136. Because although the case law with which we will be concerned existed prior to the Equality Act of 2010 the reversal off. The burden of proof, as it has become known, was enshrined in section 136 and Section 136 says this that if there are facts from which a court or in our case and employment tribunal could decide in the absence of any other explanation that a person A has contravened the provision concerned, the court must hold that the contravention occurred. That's if you like Stage one on then. The second part of section 136 is that Subsection two does not apply if a shows that he did not contravene that provision. Put simply, a claimant has to establish ah primer facing case off discrimination. The burden of proof then passes to the employer to show either that the act did not occur, or indeed that there was a non discriminatory reasons for so doing. So the claimant, a starting point in any case of discrimination, has to prove on the balance of probabilities a certain number of facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed on Act off discriminate discrimination and it's important at this stage to stress that if the claimant does not prove such facts, then the claim fails. AB in issue. In other words, the employment tribunal, when approaching any form of discrimination claim, will be required to make findings of fact as to what happened on. If the claimant doesn't get those factual findings in his or her favor, then he or she is not going to get off the ground with any form of discrimination claim. And this applies across the board, whether it is a claim of direct discrimination, a claim under Section 15 of the Equality Act of discrimination arising in consequence of disability indirect discrimination fellow to make reasonable adjustments, harassment on victimization. So there must be, on the face of it, findings of fact that, in the absence of any explanation from the employer at the tribunal, could conclude that some form of prohibited act that those to which I have referred have a taken place. But what of the case law that has actually put put that the meat, if you like on the bone of section 136? Well, the guidance is clear on you'll find it in the leading case of age in on one. A decision of the Court of Appeal at some years ago when they set out ah, number of points as how the Employment tribunal and, indeed, how the advocates should approach at the issue off the burden off proof. Let's look at the age in criteria in a bit more detail, if we may, firstly, and the starting point always is. And I think this is right, from a practical point of view that it's important to bear in mind that in most cases, when it comes to deciding whether the claimant has established that primer facing case, it is unusual to find direct evidence off discrimination to be fair. Having acted for both claimants on respondents throughout my career in the employment tribunal, it is rare for unemployed to admit whether to itself or otherwise that discrimination has occurred. This is very much at the case off the tribunal, drawing the inference that there is such discrimination on. I think I've only done about two cases where on employer would perhaps admit that there was in fact some form off discrimination, so that really is the starting point that it's never gonna be the case. In the majority of cases, the evidence of discrimination will be readily available to be found by the employment tribunal. That second point to make about the I Jinan one guidance is the word could at the word could in section 136 is an important word. Is the the tribunal koot reach a conclusion of unlawful discrimination. Therefore, this stage when the claimant is establishing what one might call the primer facing case. The tribunal, when considering those facts, does not have to reach a definitive conclusion that, in fact, discrimination has occurred. All that there waas at some unlawful act of discrimination. The word could means, by simple definition that there could be or there may not be. That is very much a matter for the tribunal to determine on the threshold for establishing that is relatively low. In other words, I suppose one could put it this way at this stage by virtue of the word could at the tribunal is looking to see if there are any primary facts before it, from which some inference of secondary fact that there waas or there might have been discrimination can be drawn from those facts at this stage, though off the process, it's important for the Employment Tribunal to assume that there is no adequate explanation for those facts. That is the second stage of the process to which I will come in a moment. But the tribunal and it would be an error of law. That would certainly be appealable that if the tribunal started considering or bringing into the equation at this first stage, whether there was an adequate explanation for those facts, that would be something that it is not entitled to do. It was, therefore, focus on the very simple question that, in the absence of any explanation at the tribunal, could infer that discriminate react has occurred clearly as well as the I gene guidance tells us, the tribunal is permitted to have reference and to make reference to any replies in questionnaire documents on door to see whether the employer has complied with any codes of practice that are relevant to the particular issue with which the tribunal has tribunal is grappling. Then comes the shift, assuming for the moment as I say that there is some form of primer facing case, the burden then shifts to the respondent on it is for the respondent to prove that he it did not commit that unlawful act. As I've said before, if the tribunal takes the view that there is no primer Facey, a case that has been established by the claimant, then of course the burden of proof does not shift to the respondent in any shape or form. But once the burden has shifted, what is? How does the tribunal approach the position off the respondent? Well, it does it in this way to discharge the burden on the respondent to show that they did not commit the act that is alleged, the respondent must prove on the balance of probabilities. I more likely than not that the treatment that was meted out to the individual was in no sense whatsoever to do with the protected characteristic or, indeed, that the act on the face of it did not occur. This really is the nub at the key to defending discrimination cases on. We'll look at some practical examples a little bit later on What is the tribunal do? Well, it obviously examines the respondents explanation for those facts. If there are prime a face, your findings of facts. What is the motivation off the respondent for acting in the way that it did in, for example, a race discrimination case? Is race Can tribunal draw the inference that the race or the ethnic origin off the claimant was the motivating factor for the respondent in acting, as it did off course? The respondent will be at liberty to adduce evidence, and it's important that the witness statements, if you're acting for an employer, focus on this, that will actually deal with the reasoning, the mindset of the individual or the allergic perpetrator in acting the way that they did so much. Therefore, for the test, let's now move on to see how it has developed over the years. Andi, like many areas of employment law there, waas a slight blip if one can call it that in terms of the way that Section 136 operates on should be applied. The first authority that sought to depart from the agent and one guidance was a case a few years ago called if only on Royal Mail Group. This was a decision off the Employment Appeal Tribunal, presided over by Mrs Justice Lang on what she somewhat controversially held in the Afobe case is that there is no burden on the claimant to show a primer facing case. She found that the task of the employment tribunal, unlike the procedure that we've just looked at at the task of the tribunal, was to consider once all the evidence had been heard from all sources. So the claimant, the claimants, witnesses, the respondents, witnesses once all that evidence had been heard, whether there were facts from which acts of discrimination, regardless of whatever protected characteristic it, WAAS could be inferred with the greatest of respect. To Mrs Justice Lang, that is simply wrong. That is simply not the way that Section 136 was designed to operate. It flies totally in the face off the Court of Appeals, ruling in a gin and one as to how an employment tribunal should approach at the issue off the burden of proof. But thankfully, order was restored following the Afobe case. The matter, or the issue of the reversal of the burden of proof, went to the Court of Appeal in the case of Delhi and City Link limited judgment in that case, being handed down by the Court of Appeal on the 24th of November of 2017. On essentially the point that the Court of Appeal made is, as I have said, that the Afobe case waas wrong on should not be followed to be fair in the intervening period. Post Afobe Just looking at the the discrimination cases in which I was involved in the Employment Tribunal, whilst Afobe was always mentioned on past song, I don't think I ever had unemployment tribunal That actually followed Mrs Justice Lang's guidance in a phobe Aled tribunals in front of whom I appeared were content to stay with the I gene and one guidance mainly, of course, because it was a slightly higher authority but to actually deal with the applicability or the any reliance that might be placed on the Afobe case that was quite simply buried six feet into the ground by Lord Justice sing in the deli case. And in part of the judgment, Lord Justice Singh said this. He said that Section 36 was simply a legislative tidying up exercise. The purpose of Section 136 It wasn't intended to change the law in substance on it certainly wasn't intended to change the operation off the agent and one test in the fundamental way that Mrs Justice Lang had approached it. She obviously had said that there was no longer this burden on the claimant of the first stage of the inquiry will, quite simply, Lord Justice Sing and the other members of the Court of Appeal in the deli case maintain that is simply wrong on should not be followed. Therefore, following the Iron Deli case order has, if you like, been restored, the I gin and one test that we looked at earlier remains sacrosanct and remains the position on the approach that the employment tribunal should take to any act of discrimination. Therefore, any thoughts of examining the entire factual matrix of the case hearing from the claimants. Witnesses hearing from the respondents witnesses on, then drawing whatever inferences a tribunal may well wish to draw is the wrong approach. The two stage process remains the starting point for the operation Off section 136. The claimant must set up that primer facing case and once that prime a face, your case has been set up. It is then, for the respondent, the burden of proof shifting. It is then for the responded to prove that it did not commit the unlawful act. So with that in mind, can I now turn to looking at some practical examples? Because it's all very well talking about the law and the actual test on the approach of the employment tribe you. But that is somewhat academic. It's somewhat legal on what I think would be of greater benefit for those watching this webinar would actually be to see how this is a thing operates in practice. I'm going to do it essentially by looking at the various areas off prohibited conduct and give you a practical case example assed how a tribunal would approach certain facts. So I'm going to split this up and deal with it on the basis, firstly, a claim of direct discrimination within the meaning of Section 13 of the Equality Act. I'm then going to go to Section 15 in terms off disability discrimination and look at planes of this discrimination arising in consequence off disability. I'm then going to move onto failure to make reasonable adjustments on, then finally, harassment on victimization. I may also throw in indirect discrimination. There you are. You see these things a filmed life, and I forgot about the existence of a Section 19 claim. But no matter, I can talk to you about that quite happily direct discrimination section 13. We know from the wording of Section 13 that there will be direct discrimination where a claimant is able to show that they have been treated less favourably than the employer or the respondent treated or would have treated. Are the persons the concept there being made for the provision being made for the hypothetical Comparator on? If there is such a less favorable treatment, then, of course, it has to be, by reason off the particular protected characteristic. So how does the eye Jim one test fit into that? Well, let's take on example off, let's say, a woman who is demoted in a particular position. She brings evidence to the Employment Tribunal to show that she was, in fact, demoted. There were other men using a sex discrimination case as an example. There were other men in the same position as her within the firm who were not demoted. That is, on the face of it less favorable treatment because, obviously she has been treated less favourably by being demoted thin. The men, she is a woman. The men are men that on its bare facts, establishes a primer facing case off direct discrimination. The burden, of course, would then shift to the employer to prove some form of non discriminatory reason for for the demotion. And, of course, if an employer were able to put forward a case that the reason why the lady in the example was demoted had nothing to do with her sex, it was to do with her capability. It was to do with whatever reason the employer may wish to come out with. If, on the balance of probabilities that reason is established, then the employer will be successful in defending at the claim as far as a Section 15 claim is concerned. This, of course, relates purely to the arena of disability discrimination. This is where an employee alleges that they have been subjected toe unfavourable treatment, that the reason for the unfavourable treatment is because of something arising in consequence of disability and, of course, that the respondent is unable to show that the unfavourable treatment is a proportionate means of achieving a legitimate aim. Let's take a classic example of this where a disabled person who has been on long term sick alleges that the act of dismissal is a is a contravention off section 15. The primary case to be established by the claimant is always relatively straightforward. The act off dismissal, in my example, is the unfavourable treatment, after all, anything which is not favourable Urgo must be deemed to be unfavorable. Does the unfavourable treatment the dismissal does that arise because of something in consequence of disability? Yes, on the facts of my example, because it's the claimants disability that they have that is causing a high level of absence from work on on the face of it that establishes the prime of facing case off Section 15 discrimination. But of course, shifting the burden of proof, then to the respondent it would be open to the respondent. Firstly, to show that the reason for the unfavourable treatment was nothing to do with something arising in consequence of disability. And very often you can actually find other reasons as to why discriminate reactors occurred in these circumstances. But secondly, and more importantly, it's for the respondent approve nonetheless, that it's a proportion of means of achieving a legitimate A. The legitimate aim of the employer in that particular case is toe have high levels off attendance and low levels of sickness on having gone through all the hoops as long as a respondent could establish that, having gone through all the hoops, there was nothing mawr that the employer could do to keep the claimant in work. Indirect discrimination Section 19 claim again. This is where there is some form of provisioning, criterion or practice, and usually an indirect discrimination claims they fail. Or many of them, in my experience, fail at the first hurdle because the employees, the claimant, is unable to establish that the employer actually applied a particular provision criterion or practice to the entire workforce on. Of course, if the claimant is unable to establish that that PCP actually applied, then the claimant is never going to get past the first hurdle of the idea and long test to go on to the rest of the components of indirect discrimination. But assuming, of course, that the claimant can approve on balance of probabilities, the existence off the provision criterion or practice on that it was applied to the entire workforce can claim and then say that in fact, it places persons with whom the claim and shares the particular protected characteristic of race at a particular disadvantage when compared with those who don't have the characteristic on. Then obviously establishing that the claim and was put at that particular disadvantage that would establish the primer facing a case of the claimant was unable to establish any of those components. Then the claim would obviously fail at the first stage. If the claimant establishes that the burden of proof then shifts to the respondent again, as we saw in the Section 15 it's the question of whether it was a proportionate means off achieving a legitimate aim. Classic practical example of this where I was acting for an employer, you have the claimants establishing the primer facing case that there is a rule in a factory that English must be spoken at all times. On the factory floor. A group of Portuguese workers who were employed in this particular factory playing that that was indirectly discriminate ary that because of them being Portuguese and English, not being their first language on the Employment Tribunal found that in fact, the claimants had established the prime a face. Your case there was a provision criterion or practice. English must be the language spoken on the factory floor. It puts after the particular disadvantage when compared with native English speakers. We are at that particular disadvantage primal facing case established. However, as the employer, we were able to say that that wasa proportion of means of achieving a legitimate aim, the legitimate a being, the health and safety off all the workers on the factory floor where there was heavy machinery where there was dangerous machinery, it was important that everyone was speaking in the same language in case there were there were problems with the machinery. Is that a proportionate means of achieving that legitimate aim? Yes, said at the Employment Tribunal section 20 Reasonable adjustments cases well again that there are a number of facets here. It's where the disabled person says the provision criterion or practice places that disabled person at a substantial disadvantage when compared to persons who are not disabled in relation to irrelevant matter. If they can establish that, then the duty to make reasonable adjustments arises on again, it would be for the employer in that example to show. Firstly, the duty did not arise, or, indeed, that reasonable adjustments were being made. Remember, of course, that part of the prime a facing a case that the claimant would have to establish is the substantial disadvantage on the employer in a reasonable adjustments. Claim, of course, has the defense off knowledge, but not simply knowledge off the claim and being dis disabled, but also knowledge that they would be put at a substantial disadvantage by the operation off the P C P. And then finally, harassment and victimisation harassment very similar to direct discrimination, a claim it would have to show a primer facing case of unwanted conduct which had the purpose or effect of violating the claimant's dignity or creating an intimidating, hostile, degrading or otherwise offensive environment for him or her. If the private face your case is established on the facts, the burden and transfers to the employer to show that whilst that degrading environment may have been created or offensive environment may have been recruited created for the claimant it waas It was not because off disability, sex, race, etcetera. It was for some other nondiscriminatory reason on, therefore, the claim would fail. Finally, victimization victimization, of course, is where the claimant doesn't protected act. Raising the primer facing case would require the claiming to show that a protected act was done on that as a result of that protected act, the claimant was then subjected to a detriment again at the burden of proof shifting to the employer on this would be to show that any detriment that the claim and suffered, if a tall would be not because they're the employees had committed a protected act raised a grievance about it. Discriminatory matter, given evidence in a tribunal, raised the tribunal claim etcetera, etcetera. That's where the burden would shift to the employer. It is a technical area, ladies and gentlemen, the burden of proof. I I think a lot of employment tribunals in practice tend to try and gloss over it when they're analyzing discrimination claims. But the two stage test of which I have spoken remains sacrosanct. Claimant to establish prime a facey a case if claimant does establish that case from which the respondent could conclude that discrimination has occurred, the burden then passes to the respondent to show the non discriminatory at Reese. Well, I hope that's been of use. I hope you've enjoyed the last 30 minutes or so. I wish you well. With your future discrimination cases on, I look forward to seeing you'll against.
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