24 March 2017

Providing discrimination is notoriously difficult not least due to the often complete absence of any evidence of the reason why the person acted. People rarely accept that the real reason for their action was due to the protected characteristic.

The law recognises this difficulty and creates rules as to the “burden of proof” i.e. who needs to prove what in order for claims to proceed. These rules, in summary, state that where an allegation of unlawful discrimination is made, the Claimant must bring forward sufficient evidence from which an inference of unlawful discrimination can be made by the Tribunal. In such an event, it would then be for the Respondent to show that the reason for the treatment was not the prohibited reason.

The case

In Kent Police v Bowler a large number of allegations were raised by the Claimant in relation to race discrimination at work. The Tribunal upheld a number of the claims. The employer appealed arguing that the Employment Tribunal had drawn inferences that were not open to it from the facts it had found and had therefore wrongly held that there was sufficient findings to draw an inference of unlawful discrimination which the Employer had to rebut.

The outcome

The Employment Appeal Tribunal in a lengthy judgment running to 102 paragraphs held that unreasonable conduct by itself is rarely sufficient to give rise to an inference of unlawful discrimination. Ordinarily there requires to be some evidence that could justify the finding that the behaviour was potentially unlawful (as opposed to unreasonable).

In the case in point there was evidence that the grievance process was handled badly and indeed the employer acted unreasonably but these were not enough by themselves to allow the Tribunal to find that there was potential unlawful race discrimination. There needed to be other facts from which such an inference could be drawn. The case was remitted to the Tribunal to consider.

Practical issues

This case underlines the difficulty in providing unlawful discrimination given the reliance upon a myriad of factors and the lack of direct evidence of unlawful discrimination. Nevertheless employers need to ensure that when employees are treated in some way unfavourably, whether during employment or in relation to dismissal, if there is the potential for a discrimination complaint, documentary evidence is retained showing the real reason for the treatment.

If a Claimant can bring forward sufficient evidence that allows a Tribunal to conclude that the real reason for the treatment could be unlawful discrimination, if the employer cannot show the reason was not unlawful, the claim will be upheld. Retaining evidence supporting the reasons for such treatment is therefore of critical importance.

The Equality Commission’s Code of Practice on Discrimination in this area is a good starting point for some practical pointers. See https://www.equalityhumanrights.com/en/publication-download/employment-statutory-code-practice

The judgment is here: http://www.bailii.org/uk/cases/UKEAT/2017/0214_16_2203.html

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.