Tag Archives: Direct discrimination

Direct Discrimination: Burden of Proof

In this third post on direct discrimination I am going to comment on the role of section 136(2) of the Equality Act which provides that when considering a discrimination complaint that

If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

Section 136 is meant to simplify the process by which discrimination claims are considered in recognition of the difficulty proving these. The Explanatory notes on this section refer to this section ‘shifting the burden of proof’ to a respondent: “This section provides that, in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act.”

The idea of shifting the burden has its roots in equality legislation that predated the Equality Act 2010 as with so much positive employment protection in the UK it was a creation of EU law (Council Directive 97/80/EC). In the domestic context the definitive explanation is found in the House of Lords Decision in Igen v Wong. Although interpreting the Sex Discrimination Act the House of Lords set out a two stage approach an employment tribunal must follow when considering a discrimination complaint.

Stage one – When bringing a discrimination claim the complainant is the one who is under a burden of proof to demonstrate to the tribunal that there are facts from which the tribunal could conclude in the absence of an adequate explanation to the contrary  that the Respondent treated the complainant less favourably because of a protected characteristic. Colloquially this is often referred to as the prima facie test (because nothing makes law more accessible than throwing in some latin!)

Stage two – If the complainant is successful in meeting the test in stage one the n the respondent (usually the employer) that there is an alternative and preferable explanation for the conduct complaint of. For example, ‘my client did not dismiss Mr X because he is 68 years old,  they dismissed him because he was shit at his job and spent the whole working week staring at his smartphone!; although perhaps using more lawyerly language to put their case.

The significance of stage one is that, excluding for the moment the alternative explanation the respondent may advance (except insofar as it helps the complainant), if the claimant puts forward a convincing case based on facts in evidence the burden shifts from them to the employer. In other words, it is no longer for the complainant to prove they were discriminated against but for the employer to positively prove they did not discriminate against the worker. If they can’t do that then  then the tribunal must find there is discrimination.

Enter the Equality Act 2010 

This two stage process still applies in the tribunal following the enactment of the Equality Act 2010, and specifically section 136(2) of the Act. Broadly speaking it was assumed that although not worded the same the burden of proof provisions in the Equality Act 2010 were the same as set out in Igen v Wong (in fact that assumption was correct, as well shall see).

equality
Efobi v Royal Mail: A false dawn for race discrimination law. 

In 2017 the Employment Appeal Tribunal in Efobi v Royal Mail Group Ltd [2017] IRLR 956 challenged that view and, in the process potentially easier made it for a short while for complainants to win discrimination complaints.

Mr Efobi was a black male from Nigeria, he was employed by Royal Mail as a postman but had graduate and postgraduate degrees in Information Systems and Forensic Computing. Mr Efobi had made over 22 applications for posts working for Royal Mail in the computing field but he was unsuccessful in each and every application. He contended that the reason for this was due to race. In the Employment Tribunal the two stage test in Igen v Wong was applied and the tribunal determined that Mr Efobi had not met the first stage of the test in that he did not show facts that satisfied the tribunal that the reason for his treatment was race; a key factor in this was the varied personnel who were independently involved in the case.

In the EAT the applicability of Igen v Wong to the new wording of section 136(2) was challenged, specifically it was argued that a discrimination complainant does not have a burden to proof discrimination occurred. Although the explanatory notes to the Equality Act 2010 (cited above) do make reference to a burden when it states that in “any claim where a person alleges discrimination … under the Act, the burden of proving his or her case starts with the claimant” this was not in the text of the Act itself which states (emphasis added) only that if “there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

The EAT accepted this argument finding that

Section 136(2) does not put any burden on a Claimant.  It requires the ET, instead, to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not “there are facts etc” … .  Its effect is that if there are such facts, and no explanation from A, the ET must find the contravention proved.

And

It may therefore be misleading to refer to a shifting of the burden of proof, as this implies, contrary to the language of section 136(2), that Parliament has required a Claimant to prove something.  It does not appear to me that it has done.

This removal of the burden from the claimant would, especially where an employer does not put forward relevant evidence or witnesses simplify the two stage process, make succeeding in a discrimination case easier. The amended test at which the presumption of discrimination ours would also seem to be somewhat lower than a prima facie one (at least on my reading).

Unfortunately, in late 2018 and last month the decision of the EAT was first overruled and then reversed in Ayodele v Citylink Ltd & Anor [2018] IRLR 114 and Royal Mail Group Ltd v Efobi [2019] EWCA Civ 18 and the Igen v Wong status quo was reversed.

It is now again the case that a claimant has to prove, often as a litigant in person , without legal advice, without necessarily having access to relevant evidence (as was the case in Efobi because of their defence strategy), without recourse to pre-claim enquiries as was allowed in section 138 of the Act that their employer (who of course has the benefits of all the things the claimant is without) treated them less favourably because of a protected characteristic.   Is it any wonder that direct discrimination employment tribunal success rates are so low!

Time will tell whether Ayodele or Efobi will be appealed to the Supreme Court.

 

Direct Discrimination: Reason and Intention

Over the next couple of days I will be posting a four part series on direct discrimination, specifically on the role of intent, causation, proving discrimination and what defences are available. It is not a detailed explanation but an introduction to these four aspects.

To someone who has not had personal experience of the legal system or training then there is a good chance that if one were to ask to give an example of discrimination means in a workplace setting they would give examples of a person being refused a promotion because they are black, being dismissed because they are too old or  being given all the early shifts because they Polish and  other similar examples. Although not described as such these are all instances of direct discrimination. It is unlikely that the other types of discrimination in the Equality Act 2010 would be mentioned (Harassment, Victimisation, Indirect Discrimination and, for disability claims only, Failure to make adjustments and Discrimination Arising from Disability).

So, what is direct discrimination?

Whilst no-one who has ever dealt with a direct discrimination complaint will say that the law is simple (it most definitely is not) in terms of the underlying moral principle it is easy to understand and accords with common sense principles of fairness. It is not right, for example, to post an job advert saying no disabled persons or gays can apply, to dismiss a worker from a job just because they happen to be a Muslim and it is these types of wrongs which direct discrimination is focused on eradicating.

The technical definition of direct discrimination is found in section 13 of the Equality Act 2010 and sets out that no employer can treat a worker less favourably because of a protected characteristic than they would treat another person who did not share that protected characteristic. A protected characteristic is one of the following: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

Unlike most types of discrimination direct discrimination has the distinction of, once being found, not having a defence available with which to justify the act (with one exception which will be covered in a later post). This has I suspect led to it being viewed as a much more serious type of discrimination compared to others in the Equality Act. In its crudest forms  it offers little room for doubt that the perpetrator is simply bigoted, such as the ‘no coloured, no irish’ housing adverts of the 1960s for which race relations  legislation was expanded in the 1960s and 70s to counteract.

Certainly as a union representative and I am not sure this is not something for which I should not be criticised for, I am quite loathe to make an accusation of direct discrimination in a case  since doing so is often taken as an accusation of outright intentional prejudice whereas I would have no concerns of alleging a breach of a duty to make reasonable adjustments or indirect discrimination which does not have the same emotive of accusatory connotations, for example.

In fact I can probably count on on two hands the number of occasions where I have suspected and had some evidence to corroborate that there was potentially direct discrimination in play.

Whilst direct discrimination is (along with harassment) the type of discrimination claim where one is more likely to see bigotry in operation the assumption that direct discrimination is a more prejudicial type of discrimination is not always fair. It is not necessary in order to win a case that the person directly discriminating against the Bangladeshi, gay or female worker be a racist, homophobe or sexism. In the remainder of this post I want to consider two examples to demonstrate this.

In James v Eastleigh Borough Council [1990] IRLR 288 a local council had a policy of giving persons of pensionable age free swimming lessons. At that time the state retirement age for men was 65, but for women it was 60. The claimant in the case was a male aged 61 years of age and, because he was not of retirement age he was discriminated. There is no suggestion of any bad faith on the part of Eastleigh Borough Council but the courts accepted that a 61 year old female would have been given free swimming sessions and that Mr James had been treated less favourably because of his sex and, therefore, he was directly discriminated against.

Within the last few weeks another similar decision was issued by the Court of Appeal in The Lord Chancellor & Anor v McCloud & Ors [2018] EWCA Civ 2844. The essence of the case was the UK government introduced pension changes that resulted in workers needing to pay substantially more into their pensions. Workers who were aged 55 years of age or more were exempt from the change because they felt that to impose this on persons closest to retirement to be retirement would be unfair. The reason for treating older workers more favourably was not malicious but for good general reason (albeit too vague to constitute a legitimate aim) but, despite this the court of appeal found the UK Government  discriminated against its own workers who were aged less than 55 years of age.

There is no rule therefore that direct discrimination is always malicious and can sometimes occur even when the discriminator believes they are doing the right thing.