Shifting the Burden of Proof in Discrimination Claims - Jumping to Conclusions?

...from unreasonable conduct and highlights some interesting points for employers to take note.

Burden of Proof in Discrimination Claims

A two stage approach to establishing discrimination usually applies:

• the burden of proof is initially on the claimant to prove facts from which an employment tribunal could conclude, in the absence of any other explanation, the respondent (i.e. the employer) committed an unlawful act of discrimination.
• If the claimant does this, the burden then shifts to the employer to provide an adequate, non-discriminatory, explanation for the alleged detrimental treatment.

Facts

Angus Bowler is a police officer of Asian descent with 25 years' experience. In March 2014, he brought an internal grievance against the police force, in which he alleged that he had been bullied and racially discriminated against after he failed to gain a promotion to sergeant.

The grievance procedure, both the original procedure and the appeal, was inadequate and 'lackadaisical'. Mr Bowler was told that his grievance was unfounded. Various issues with the conduct of the grievance and the appeal were identified, including the fact that the grievance officer did not understand the applicable legislation. The tribunal decision notes that both the Grievance Officer and the Appeal Officer were significantly out of their depth and did not take the process seriously.

Mr Bowler subsequently brought a successful claim in the employment tribunal for discrimination and victimisation against the police force. The police force then appealed the decision on various grounds. The EAT decision largely focussed on the ground that the employment tribunal had erred in its approach to the burden of proof.

Decision

The EAT examined the evidence that had been available to the employment tribunal and concluded that it "had made a leap" from finding that the handling of the grievance was incompetent to holding that the claimant had, on this basis, made out a prima facie case of discrimination (thus shifting the burden of proof).

The EAT noted there was no evidence or material from which it could properly draw such an inference on the facts. For this reason, in respect of the handling of the original grievance, the EAT allowed the police's appeal and found that the employment tribunal had erred in law. It remitted the matter to the employment tribunal. The finding of direct discrimination on other grounds (including the conduct of the grievance appeal), however, was upheld as the tribunal had identified a number of pieces of supporting evidence.

Best Practice

Whilst the EAT's decision is legalistic, it does highlight some interesting learning points.

Both the Grievance Officer and the Appeal Officer were inexperienced in dealing with grievances, failed to take the procedure seriously and had not recently undertaken equal opportunities training. Had the procedure been carried out more competently, the employer may have avoided an employment tribunal claim, and the subsequent negative publicity.

It is important that employers have in place robust procedures to identify and report incidents of discrimination and victimisation, and that such complaints are taken seriously and dealt with by appropriately trained individuals, with HR or legal support as necessary.

For more information, please contact Charlotte Williams in our Employment Law team on 0117 314 5219.