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Guidance on Burden of Proof in Discrimination Cases

In upholding a black road sweeper’s race discrimination complaint, the Employment Appeal Tribunal (EAT) has given authoritative guidance on the recurrently thorny issue as to the circumstances in which it is appropriate to infer discrimination and to reverse the burden of proof against employers.

The worker had expressed the wish to be transferred from wheeling a street barrow to driving a rubbish collection vehicle and successfully argued before the Employment Tribunal (ET) that he had been denied that promotion and assessment for a driving role on grounds of his race following a personality clash with his manager.

On appeal, it was submitted that the ET had wrongly reversed the burden of proof so as to require the employer to provide a non-discriminatory explanation for the different treatment meted out to the worker. It was argued that there was no evidential basis for that approach and that the ET’s decision was perverse.

However, in dismissing the appeal, the EAT noted that no other employee had been treated in the same way as the worker and found that the employer’s explanations for the detriment he suffered had justifiably been rejected.

Acknowledging that the burden of proof and inferences of discrimination ‘remained a difficult and controversial topic’, the EAT found that such issues were intensely fact sensitive and that the decisions of ETs in such cases should only be interfered with ‘in the clearest case of misdirection or perversity’.