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What do employers need to prove in defending discrimination claims?

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A legal case involving Royal Mail last month serves as a reminder to be aware at all times of how discrimination claims work in practice.

Efobi commenced Employment Tribunal proceedings against Royal Mail for direct discrimination, indirect discrimination, harassment and victimisation on the basis of his race.

He was born in Nigeria and identifies as a black African and Nigerian and applied for over 30 jobs within Royal Mail within a four year period and was unsuccessful with each application.

Efobi’s claims were unsuccessful in the Employment Tribunal as the Tribunal held he had not provided facts on which, without any other explanation, the Tribunal could not determine an act of discrimination had taken place.

This meant Efobi’s claims failed as the burden of proof failed to shift from him to Royal Mail and the company did not need to go through the process of proving they had acted lawfully.

The case was appealed to the Supreme Court who found in favour of Royal Mail in that the Employment Tribunal did not make an error of law in determining that the burden of proof had not shifted from Efobi to Royal Mail.

The Supreme Court clarified the position in relation to the burden of proof in discrimination claims, confirming that the claimant still has the positive burden of showing that there are facts that, without any other explanation, could allow a court to decide that a discriminatory act had taken place.

Should a claimant be able to show this then the respondent will then have the burden of proof to show that the alleged discriminatory act was not an act of discrimination.

Essentially therefore the employee needs to show what has happened looks wrong, and the employer then gets to show that their true reason for doing what they did was not discriminatory, so there is an explanation to stop the court inferring discrimination.

While the ruling is helpful, it has very unusual facts. In practice employers should always second guess the possibility of discrimination claims when they are taking any act, and be ready to justify why they did it using a strong business case which was already in place. 

In practice it is unlikely a court or tribunal will conclude that the burden has not shifted until it has understood at least some evidence from the employer about that business case.

In cases like Efobi’s, where recruitment was the issue, it is important to record the reasons for recruitment decisions and to be able to justify these reasons, usually on grounds of skill and expertise.

There are a number of scenarios in the current climate where it is easy to see that a claimant could allege in hindsight that the reasons for decisions being made were due to discrimination.

Examples of this as employers find their path through the end of lockdown could be:

  • Pay reviews;
  • Changes to benefits;
  • Allowing some staff to work from home;
  • Rota / shift changes
  • Imposing Covid related conditions for office workers;
  • Selecting employees for redundancy in the absence of furlough support.

When making decisions such as these it is important to maintain records of the reasons why the decisions were made.

Employers will need to be ready to play their business case card in reply to allegations, and it is not possible to make up that business case when the allegation is raised.

It needs to exist when the decision is made.  

 

Brian Gegg is an employment partner and head of business advisory and Chris Greep is an employment associate at BDB Pitmans