The burden of proof in discrimination claims

When assessing evidence in discrimination claims, tribunals are required to use what is commonly referred to as the reverse burden of proof approach. This means that the initial burden of proof lies with the worker. The worker needs to prove that the facts of the case give rise to an inference of discrimination, or that discrimination has occurred in the absence of any other explanation.

If the worker can show that there are facts which give rise to an inference that the employer’s treatment of them was discriminatory, then the burden of proof will shift to the employer. The employer will then need to show that discrimination was not the reason for the way the worker was treated.

The types of facts which can give rise to an inference of discrimination and which would therefore shift the burden of proof to the employer to prove that their actions were not discriminatory is a question which is the subject of much case law.

This question arose in Atif v Dolce & Gabbana in front of the Employment Appeal Tribunal (EAT). The worker was an Arab-speaking Algerian working for an Italian fashion brand who had numerous Italian colleagues. She was dismissed on the basis that she had breached the employer’s sickness absence policy. The worker brought claims for unfair dismissal and direct race discrimination, on the basis that she had been treated less favourably than Italian colleagues in similar circumstances to her.

Regarding the race discrimination claim, the Employment Tribunal found that the worker had not shown that the facts in the case had given rise to an inference of discrimination. The burden of proof had not shifted to the employer to disprove that discrimination had occurred. The Employment Tribunal dismissed the race discrimination claim and the worker appealed to the EAT.

The EAT held that the Tribunal was wrong in its assessment regarding the burden of proof, as there were numerous facts which gave rise to an inference of discrimination. This included that the employer’s management were all Italian, they had initiated disciplinary proceedings just after the worker had complained about her manager, her grievance process was never completed, and her Italian manager had also taken sick days in breach of policy and this is what had led to Ms Atif’s dismissal. The EAT stated that the burden of proof should have shifted to the employer to explain to the Tribunal why their treatment of the worker was not discriminatory.

Despite the EAT criticising the original tribunal for its incorrect approach regarding the burden of proof, the EAT held that the overall decision to dismiss the race discrimination claim was correct on the facts. The worker’s appeal was not upheld. The EAT provided useful guidance for workers regarding what they are required to prove when bringing discrimination claims in the Tribunal which makes it an interesting read.

This blog was written by Yavnik Ganguly, Solicitor at didlaw.