"BURDEN OF PROOF" REGULATIONS STRENGTHENED
(21 February 2005)

All three equality commissions today welcomed a landmark Court of Appeal decision strengthening the Burden of Proof regulations. The judgment makes it clear that after an individual has proved facts which suggest that they have been treated unfavourably because of discrimination, employers are expected to provide detailed evidence to prove that they did not discriminate. Evidence needs to show that an employer's actions were in no way related to an employee's sex, race, disability, sexual orientation or religion/belief in order to defeat the claim.

The judgment follows concerns expressed by the Equal Opportunities Commission (EOC), Commission for Racial Equality (CRE) and Disability Rights Commission (DRC) that the Burden of Proof regulations (introduced in 2001) were not being implemented consistently or correctly by Employment Tribunals.

In 2003-4 17% of all cases related to a main complaint of discrimination. The Commissions, believing that the majority of these cases would be for direct discrimination, intervened to request the Court of Appeal to give clear guidance to Employment Tribunals on the burden of proof in direct discrimination cases. The resulting judgment should enable parties to settle claims before they are lodged or reach court.

Jenny Watson, Deputy Chair of the Equal Opportunities Commission said: "Employers now have clarity in relation to the Burden of Proof regulations. The court is clear that once claimants have established that there could be a case of discrimination, the onus is then on employers to prove that they have not discriminated, and we welcome this judgment. Setting in place systems and procedures which prevent discrimination will prevent discrimination occurring in the first place, thus minimizing the cost and stress of tribunals. It will also help
employers to provide vital evidence if they do face a legal challenge."

As a result of this judgement, it is now expected that employers will be held liable for unlawful disability discrimination if they cannot provide a good, innocent, explanation for why they have not recruited or retained a disabled person.

The Court of Appeal has clearly accepted the positive joint legal arguments put forward by the DRC, EOC and CRE, who all decided to intervene in these cases to help the Court interpret the new law that applies equally across all the present anti-discrimination laws".

Trevor Phillips, Chair of the CRE said: "We welcome this landmark judgement from the Court of Appeal. It sets out valuable guidance for employment tribunals and provides clarity for victims of discrimination on how to present their cases."

In October 2001, s63A was added to the Sex Discrimination Act, in July 2003 s54A was inserted into the Race Relations Act and in October 2004 s17A(1C) was inserted into the Disability Discrimination Act. These provisions set out the burden of proof in discrimination cases. They say that if an employee proves facts which suggest that they have been treated unfavourably because of sex/race/disability discrimination, the burden shifts to the employer to provide a non-discriminatory explanation for their treatment of the employee.

If the employer can't do so, a finding of discrimination will be made. These provisions recognise the difficulty of proving that discrimination has taken place (because it is not often overt) and that this difficulty could prevent individuals from enforcing their right to equal treatment.

Three cases went before the Court of Appeal on 7 and 8 February 2004 which addressed the issue of the burden of proof regulations : Igen v Wong, Chamberlin and Emezie v Emokpae and Webster v Brunel University. The Court of Appeal confirmed today that it is possible for Tribunals to find that unreasonable conduct against a person in a protected class can give rise to a successful discrimination claim, even without evidence of other discriminatory behaviour, if the employer is unable to provide an adequate non discriminatory explanation for that treatment.

The Court of Appeal in its decision has also set out guidance on how Tribunals should assess whether a Claimant has established a prima facie case of discrimination and thereby shifted the burden to employers to provide a satisfactory explanation for their actions. This ruling confirms guidance previously given in the Disability Rights Commission's Code of Practice.

Top