Proving Discrimination: direct, indirect… and neither
- By James Ferguson
Sacha Baron Cohen’s creation Ali G coined the catchphrase:
Is it ‘cos I is black?
Ali G Indahouse (2002)
The default presumption that any treatment or mistreatment of an individual is motivated by a protected characteristic has become something of a norm. The Supreme Court in London recently considered the circumstances under which a complainant has to prove it.
The claimant, an Irish citizen, was born in Nigeria and identifies as black African and Nigerian. He was employed as a postman in 2011, initially as an agency worker and, since 2013, directly by Royal Mail. The claimant, with qualifications in computing from Trinity College, Dublin, and Dublin City University, wished to progress his career within Royal Mail.
He made 30 unsuccessful applications between 2011 and 2015 before taking the matter to an employment tribunal claiming discrimination and harassment on the grounds of race.
Under the 1976 Act, there was an initial and express burden of proof on the claimant:
[where] …the [claimant] proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent – (a) has committed such an act of discrimination or harassment against the complainant, …the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.
The wording in the Equality Act is slightly different in that there is no express burden on the claimant:
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.
The claimant raised a further issue: the respondent relied on the general evidence of two managers familiar with their recruitment processes rather than direct evidence relating to his 30 applications.
He contended that an adverse inference should be drawn.
Burden of Proof
There is no substantive change in the law between the 1976 and 2010 Acts. A tribunal must consider all evidence, and the 2010 Act simply clarifies this.
The critical point for present purposes is that, in placing upon the claimant the burden of proving facts from which the tribunal could conclude (in the absence of any other explanation) that there was discrimination, the tribunal did not make an error of law
It is for the tribunal to draw inferences based on the particular circumstances of a specific case.
There can be no reasonable expectation that a respondent will call someone as a witness in case that person is able to recall information that could potentially advance the claimant’s case; and I can see no reason why the tribunal should have inferred that, by not calling as witnesses any of the numerous individuals involved in making the various recruitment decisions, the respondent was seeking to withhold information about the race of successful candidates.
This judgment belies the claimant’s frustration in the face of rejection. The tribunal upheld the harassment aspect of his claim in part. It occurs that an unsuccessful job applicant should always ask for feedback.
As an employer, to provide such feedback acknowledges the time and effort invested by the applicant and allows them to learn and grow as an applicant. In turn, better applicants yield better employees.
Ali G Indahouse (2002)
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