EAT upholds tribunal's decision to reject race discrimination claim despite error in reasoning
The Employment Appeal Tribunal (EAT) has upheld an Employment Tribunal's decision to reject a race discrimination claim, despite finding that the Tribunal had erred in some of its reasoning.
The burden of proof rule in discrimination
Where key facts are in dispute in litigation, the law imposes a burden of proof to determine which side has the ultimate responsibility of proving their case to the Tribunal. As a general rule, it is for the claimant to prove their case, ie that they are entitled to bring the claim and entitled to the remedy sought.
Section 136 of the Equality Act 2010 imposes a different burden of proof rule for discrimination litigation. This rule says that once there are facts from which a Tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof shifts to the respondent to prove that it did not in fact discriminate against the claimant. In other words, if section 136 is engaged it is no longer for the claimant to prove their case, but instead the respondent must prove its defence.
Factual background
The case of Atif v Dolce & Gabbana UK Ltd concerned an Algerian claimant who was Arabic speaking. The Claimant worked for the Harrods concession of Dolce & Gabbana. During her employment she used her full sick leave entitlement every year and the concern was that she was effectively using sick leave as an extension of holiday entitlement. The claimant was dismissed due to her abuse of the sickness absence policy.
The claimant brought an Employment Tribunal claim for unfair dismissal and race discrimination, alleging that she had been treated less favorably by her employer because she was not Italian. The claimant was unsuccessful in both claims and appealed the decision to the EAT. She argued that the Tribunal should have applied section 136, to shift the burden of proof onto the employer.
The EAT decision
The EAT found that there were indeed factors present that suggested there could have been discrimination. This supported the claimant's argument that the burden of proof had shifted onto the respondent. The Tribunal should have considered whether the respondent had demonstrated that there had not been any discrimination. It did not do so.
However, the EAT nevertheless rejected the claimant's appeal. Whilst there was an error in the Tribunal's reasoning, the EAT found that the relevant facts had been considered in detail. The ultimate finding that there was not discrimination was not a perverse finding. Whilst the Tribunal's reasoning was "not ideal", it had been entitled to find in the respondent's favour.
Learning points
Whilst this is a technical decision on a point of law, there are nevertheless practical learning points that can be discerned from the decision. Employers facing discrimination litigation should consider the burden of proof rule and how the burden of proof can shift onto the employer. Employers should consider how they can evidence that a particular course of action was not discriminatory, in case of challenge.