Reversal of the Burden of Proof in Discrimination Claims

October 11, 2019

Reversal of the Burden of Proof in Discrimination Claims


Section 136 of the EqA reads as follows:


(1) This section applies to any proceedings relating to a contravention of this Act.

(2) 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.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

(4)-(5) …

(6) A reference to the court includes a reference to –

(a) an employment tribunal;

(b)-(f) …

Section 136 EqA implements EU Directives on burden proof in discrimination claims. This particular section has proved difficult to apply in practice and has generated a significant amount of case law. The application of the two-stage test was explained in the judgment of Mummery LJ in Madarassy v Nomura International plc [2007] EWCA Civ 33.


At the first stage the claimant must prove “a prima facie case” which means that ‘a reasonable tribunal could properly conclude’ from all the evidence before it that on the face of it a case of discrimination is made out. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. This exercise involves looking at all evidence which is potentially relevant to the complaint of discrimination absent the non-discriminatory explanation.

At the second stage, and only after a prima facie has been shown, the respondent is required to prove an adequate non-discriminatory explanation of the treatment of the complainant. If the respondent does not do this then the tribunal must uphold the claim. This is understood to mean that in order to reject a claim at Stage 2, a Tribunal must be satisfied that discrimination played no part in the alleged treatment.

In Base Childrenswear v Otshudi [2019] EWCA Civ 1648 LJ Underhill looked at the application of this test in a harassment case.


What was it about?

The Claimant was called by the Managing Director to his office. He told her that she was being dismissed for redundancy. The dismissal was completely out of the blue.

The Claimant told the Managing Director that she did not believe that redundancy was the true reason. She said that she believed that she was the victim of discrimination by others in the team that she worked with and that that was the real reason why she was being dismissed.

Three weeks prior to the final hearing and for the first time an allegation was raised that the true reason for the claimant’s dismissal was the belief that the claimant had intended to steal clothes which it had found ‘concealed’ in an area to which only the claimant had access.

The Employment Tribunal upheld her claim and the respondent’s appeal to the Employment Appeal Tribunal was dismissed.


What did the Court of Appeal think?

The Court of Appeal dismissed the appeal. Underhill LJ’s summary at paragraph 18 with his comments on Madarassy are very helpful in explaining the approach a Tribunal should take to the reversal of the burden of proof.

Although Underhill LJ indicated that he might not have found that a prima facie was established he felt it inappropriate to interfere with the conclusion arrived at based on the original reason for dismissal being false and the true reason only being put forward late on in the proceedings.

In respect of Stage 2 the respondent had put forward an explanation that it believed the claimant intended to steal the clothes. The basis for such a belief arrived at with little in the way of investigation supported the conclusion that the Managing Director had a stereotypical view that African’s or Black people were predisposed to misconduct.

On the question of the non-discriminatory explanation (stage 2) at paragraph 44 Underhill LJ said this:

The consequence of the way that section 136 works is that, if a respondent fails to show that the relevant protected characteristic played no part in its motivation for doing the act complained of, a tribunal is not obliged to make a positive finding as to whether or how it did so: indeed one of the reasons for the (partial) reversal of the burden of proof which it effects is that it can often be very difficult for a claimant to prove what is going on in the mind of the putative discriminator.

Importantly, the Tribunal did not have to conclude which of the ‘two theories’ was correct merely that the discriminatory explanation played a part in the decision to dismiss.


What can we take away?


This is another helpful and clear judgment from Underhill LJ and I will certainly be citing this authority on the question of the burden of proof in future cases.

On a practical note, the late change of reason in this case was fatal to an innocent non-discriminatory explanation for the dismissal of the claimant being accepted. Advisors are not infrequently faced with such challenges however when this does occur it is incumbent upon the advisor to reassess the merits and perhaps give robust advice on how a Tribunal is likely to view this at the final hearing.

Peter Doughty

Employment, Family, Property and Planning, Will Disputes