Bringing discrimination claims in the Employment Tribunal has always been difficult for workers. Proving that employers have discriminated against workers has been very difficult, as no sensible employer is going to admit, verbally or otherwise, to discriminating against his employees. Few employers will nowadays openly maintain discriminatory policies against their workers. Many employers who in practise discriminate against their workers will have impeccably written anti-discriminatory and equality policies in place as a defence to employment tribunal claims by workers.
With the difficulties of pursuing discrimination claims in mind, an ammendment to the Sex Discrimination Act 1975 (see below)as interpreted in the case of Igen v Wong, sought in 2001 to improve the chances of successful discrimination claims being brought. Once a worker had established facts making out a "prima facie" case of his having been discriminated against by his employer, the burden of proof changed, and the employer was expected to prove he had not done the things alleged against him.
In the case of Nomura Bank v Madarassy, Madarassy was made redundant after having gone on maternity leave. She alleged a string of discriminatory acts against the bank. The judges decided that evidence of unequal treatment is not sufficient to transfer the burden of proof. "Difference in status and a difference in treatment only indicate a possibility of discrimination"(Lord Mummery).
Proving discrimination at work has therefore always been difficult to achieve. Because discrimination is a very serious allegation, with potentially serious financial consequences for an employer if the allegation is proven, it is only right that a worker should provide evidence for having been discriminated against.
The problem has been in finding the right balance, between defending employers from possibly spurious claims brought out of spite or for the hope of monetary gain, and that of helping at least some of the many thousands of workers discriminated against every year. Amongst them are an estimated 30,000 pregnant women unfairly dismissed each year.
The arguments in this case turned mainly on the burden of proof, as to the interpretation of Section 63A(2) of the Sex Discrimination Act 1975 (ammended in 2001 to implement the Burden of Proof Directive 97/80/EC).
According to Section 63A(2) "Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent: a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2, or b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act."
In Igen v Wong (2005) the Court of Appeal indicated how the burden of proof provisions should be interpreted. The Act introduces a two step procedure for proving discrimination.
Firstly the worker(Claimant)has to ""prove facts". This means that a prima facie case must be established, although proving a conclusive case is not needed.
Once this prima facie case has been established, then the burden of proof shifts to the employer(Respondent) to prove that he did not in fact discriminate against the Claimant
The Court of Appeal considered the meaning of "could conclude", as to whether it meant that the Claimant merely bringing evidence of possible discrimination would be enough to shift the burden of proof onto the Respondent. The Court decided that this was not so. The prima facie evidence has to be proved in order for the burden to shift to the Respondent. This would be the case even where the Respondent did not have an adequate explanation for its behaviour towards the worker.
As to whether evidence given by the Respondent could be considered at the first stage, the case of Laing was quoted, whereby it was decided that the tribunal should have regard to all the evidence of the case in deciding whether a prima facie case had been made or not.
The outcome of the sex discrimination case in Nomura Band v Madarassy. in the Court of Appeal is serious for those intending bringing discrimination claims in the future.
Section 63A(2) of the Sex Discrimination Act 1975 has in effect now been nullified by the Court of Appeal. Claimants bringing discrimination cases should proceed as if the 2001 ammendment does not exist, and be prepared to fully prove their case, if this is possible.
In order for the burden of proof to change in your favour, you now need to first prove your case!
© Workrep 26 / 01 /2007