Proving discrimination in the Employment Tribunal

July 10th, 2024

Under the Equality Act 2010, direct discrimination is when a worker has been subjected to less favourable treatment because of a protected characteristic. The protected characteristics under the Equality Act are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation.  

Crucially, for a worker to succeed in a direct discrimination case, they must be able to prove from the evidence that the less favourable treatment they were subjected to was because of the protected characteristic. If it was only coincidental that a worker possessed a protected characteristic and was treated less favourably than workers without that characteristic, the claim will not succeed. 

This requirement to prove causation (the reason for) makes direct discrimination claims notoriously difficult to succeed in, as it is often difficult to obtain evidence proving the intent of certain conduct by an employer. Whilst there are unfortunate exceptions, it is now rare for perpetrators of workplace discrimination to expressly state that the reason for their behaviour is because of a worker’s protected characteristic. The Tribunal is often required to decide from the evidence whether an employer subjected a worker to less favourable treatment because of their protected characteristic, even when this intent or this bias was unspoken. 

To establish discrimination as the cause for mistreatment, the Tribunal uses a two-stage test.

  1. A Tribunal must consider whether the employee has established facts which indicate that discrimination could be a possible explanation for the treatment.
  1. If so, the burden of proof then shifts from the worker to the employer who must then disprove that discrimination was the cause of the mistreatment. If the employer cannot disprove discrimination as the cause, then the employee’s claim succeeds.

The two-stage test was considered in the case of Parmar v Leicester City Council

The Claimant was an Asian worker, who brought discrimination claims against Leicester City Council (‘LCC’) after she claimed that she was subjected to a disciplinary investigation in circumstances where a non-Asian worker would not have been. The Employment Tribunal found from the facts that discrimination was a possible explanation for the difference in treatment. The burden then shifted to LCC to disprove discrimination as the cause for the difference in treatment. They failed to do this. Parmer’s claim succeeded. 

LCC appealed to the Employment Appeal Tribunal (EAT), arguing that the original Tribunal had been wrong to find that the Claimant had established discrimination as a possible cause, as required by the first stage of the test. LCC argued that the original Tribunal had been wrong to find that the difference in treatment between the Claimant and non-Asian workers was sufficient in itself to conclude that discrimination was a possible explanation. LCC also argued that the original Tribunal should have conducted the two-stage test for each allegation, as opposed to applying it generally to all of the allegations. 

The EAT rejected the appeal by LCC. It found that a blanket approach to applying the two-stage test across all allegations was appropriate in this case. The EAT also found that the original tribunal was correct in finding that the difference in treatment between the Claimant and colleagues of a different race was evidence that discrimination was a possible cause. The EAT found that the original tribunal had assessed all the evidence in the case correctly. The appeal failed. 

This case provides useful guidance on how causation is assessed in discrimination cases. In particular, the EAT affirmed that workers can point to a difference in treatment as proof of discrimination as a possible cause. It is for the tribunal to weigh this alongside the other evidence available when reaching its decision in each case.

This blog was written by Yavnik Ganguly, Solicitor at didlaw

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