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  • The Burden of Proof in Discrimination Cases

    17th May 2017

    To succeed in a discrimination claim against their employer, an employee must prove enough facts from which the Employment Tribunal (ET) can decide, without any other explanation, that the discrimination did take place.

    The burden of proof then shifts onto the employer to show that their actions were not discriminatory, taking into account the particular circumstances of the case.

    A finding of discrimination is a badge of shame for any employer and it is only right that such damaging allegations must be proved to the required standard.

    In one case concerning a disabled inspector of prisons, the Employment Appeal Tribunal (EAT) could find no evidence of unequal treatment and exonerated those managers who had been accused of it (Secretary of State for Justice and Another v Dunn).

    The inspector suffered from clinical depression and heart problems and there was no dispute that he was disabled. His application for ill-health retirement was ultimately accepted, but only after inordinate delays. An ET later upheld three of his disability discrimination complaints.

    In allowing the employer's appeal, the EAT noted that the inspector's allegations of direct discrimination had never been put to two of the managers concerned in cross-examination.

    The ET had wrongly reversed the burden of proof against the employer and had jumped to an unsupported assumption that the inspector had been less favourably treated because of his disabilities.There had also been a failure to consider whether his treatment had been objectively justified.

    The systemic failures that had resulted in the long delay in processing the inspector's retirement application may well have impacted on him more harshly because of his disabilities.

    However, there was no evidence that his treatment was infected by discrimination and, rather than remitting the case to the ET for reconsideration, the EAT took the unusual step of substituting a finding that there was no unlawful treatment.

    Contact Rachel Fereday or Maxine Nutting for advice on any discrimination law matter in Devizes on 01380 722311.

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