Burden of Proof

This note sets out the changing background to the requirements on the burden of proof and profiles what has been called the “two stage test” in determining whether the “transfer of the burden” should take place. It is important to stress that each case will progress through the “transfer of the burden” based on its prima facie facts. It is also important to stress that recent authorities come from an employment perspective. There are, as yet, no reliable authorities to cite in terms of the provision of goods, facilities and services. However, the Secretary of State in her recently published Single Equality Bill has confirmed that the “two stage test” outlined below will be included within the new statutes clauses on service provision. This note concludes with a comment on the link between, and implications arising from, the new “burden of proof”, the Single Equality Bill and the steady development of the statutory equality duties for public bodies.

Most discrimination claims present no clear cut evidence that discrimination has taken place. Commenting on this fact, the Court of Appeal said:-

“It is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases, discrimination, will not be an intention but merely based on the assumption that “he or she” would not have fitted in.”

As a result of this absence of clear-cut evidence, the test for establishing discrimination (i.e. the “burden of proof”) will be central to any discrimination case. This has been termed the “two stage test”

A two-stage test

In order to address the evidential difficulties in discrimination cases, the tribunals have developed a two-stage test for proving discrimination. First, the claimant (usually the employee or former employee) must establish a case that, on its face, amounts to discrimination (a “prima facie” case). If he is able to do so, the burden of proof will then shift to the respondent (in most cases, the employer), who will have to show that it did not discriminate against the claimant.

At the first stage of this process, the tribunal will consider what inferences it could draw from the evidence presented and whether this could amount to discrimination. Such inferences may be drawn from, for example, an evasive or equivocal reply to a discrimination questionnaire, the breach of relevant code of practice or evidence from the employer’s equal-opportunities monitoring data. If the burden does move to the respondent then it must prove, on the balance of probabilities, that the treatment was “in no sense whatsoever” on the grounds of sex, race, age and so on. A bare explanation for the allegedly discriminatory conduct will not be enough; it must be backed by evidence. This is why reform experts consistently argue that the burden of proof, and the new public duties, will in a cumulative sense help create a working culture that does more than pay lip service to policies and procedures. The days of cosmetic tick boxing and having “pink and fluffy” phrases in glossy equality/diversity documents are drawing to a close.

No ‘prima facie’ case?

The Employment Appeal Tribunal recently considered and applied the two stage test and, in particular, what evidence was required for the burden of proof to pass to the respondent. The case involved a claim of discrimination by a police officer against his employer. The officer claimed that he had been subjected to less favourable treatment by this employer arising from a dispute over travel expenses and a failure to secure promotion. He alleged that the reason for this treatment was because he had previously brought a claim of discrimination against his employer and that he was therefore being “victimised” (a category of discrimination).

The employment tribunal found that one of the individuals who was allegedly responsible for the victimisation had not been aware of the previous discrimination claim and therefore this could not have influenced his conduct. Accordingly, there was no victimisation. It reached this finding on the basis that not only did the individual deny that he had knowledge of the discrimination claim but there was no evidence to rebut this denial. Consequently there was insufficient evidence for the burden of proof to shift to the respondent employer. The Employment Appeal Tribunal agreed that, in a case where there was a total absence of positive evidence of discrimination, the burden of proof would not pass and therefore the tribunal’s decision was correct in this respect. This case reinforces the fact that the claimant must produce some evidence of discrimination before the burden will transfer.

Other authorities show that claimants will need to show more than a mere difference in treatment and difference in, for example, race or sex for the burden of proof to pass. Also, the evidence must give rise to more than an “intuitive hunch” of discrimination. In addition, in most cases, unreasonable behaviour by an employer will not be enough to establish a prima facie case of discrimination. However, employers will be at greater risk in such circumstances, particularly if they are unable to offer an explanation for their unreasonable conduct.

The steady shift towards organisational responsibilities and change

The “burden of proof” and “two stage test” should be read against the incremental development of the public duties on race, gender and disability equality duties since 2000. The Single Equality Bill, published on 27th April 2009, includes not only a further extension of these duties on the public sector and those they engage with, but also proposes greater powers on law enforcement. These new powers provide the courts with discretion to make orders beyond the individual discrimination case they have ruled upon. If the ruling is adverse, the courts can order remedial action that must be taken internally by the whole organisation against whom the original individual discrimination claim has been lodged. This will have far reaching implications, especially in the area of equal pay for like work and equal pay for work of equal value.