How to prove discrimination at an Employment tribunal

Proving discrimination in an Employment Tribunal case can often be difficult as discrimination in the workplace is frequently covert or inadvertent. The law therefore allows Tribunal’s to make inferences that discrimination has taken place as a result of the behaviour of an employer by changing the “burden of proof”. The recent case of Chief Constable of Kent Constabulary v Bowler [2017] provides a helpful reminder of how the Employment Tribunals should address these evidential issues in cases of discrimination.

The Burden of Proof

In discrimination cases the Tribunals should follow a two-stage test when looking at the burden of proof:

1. If the Claimant has proved facts from which the Tribunal could decide that an act of unlawful discrimination has taken place, then;
2. The onus is on the Respondent to prove a non-discriminatory explanation.

As the first stage of this test implies, the Tribunal will only need to reverse the burden of proof in this way if they are not in a position to make positive findings of fact one way or the other. For example, if a Claimant argued that their dismissal was discriminatory but the Tribunal was able to make clear findings that this was not the case the Tribunal would not need to consider the two-stage test.

An important consideration which was underlined in the Bowler case was that the two-stage test should only be applied where the Claimant had proved facts from which an Employment Tribunal could decide. It will not be sufficient to show that there was a mere possibility of the Employment Tribunal finding an act of discrimination had taken place.

Inferring Discrimination

When applying the first stage of the test the Tribunal can make inferences of discrimination based on the facts and circumstances of the case. These inferences should only be drawn if the Tribunal could then go on to find that discrimination is more likely than not to have happened if the employer is not able to prove a non-discriminatory reason for the behaviour. In Bowler, the Respondent argued that the inferences drawn by the Tribunal were not open to it on the primary facts and the Employment Appeal Tribunal (EAT) agreed.

One of the Claimant’s complaints related to the handling of a grievance by his employer. The Tribunal concluded that the handling of the grievance was careless and incompetent and that there was a failure to properly investigate the Claimant’s complaints. On the basis of this the Tribunal drew an inference of discrimination that indicated that the officer conducting the grievance held a stereotypical view that the Claimant was being over-sensitive. Due to this inference the Tribunal held the first stage of the burden of proof test had been satisfied and therefore it was for the employer to show a non-discriminatory explanation. In the Tribunal’s view the employer was unable to do this and therefore went on to uphold the Claimant’s complaint of race discrimination.

On appeal, the EAT overturned the Tribunal’s decision because in the EAT’s view there was no obvious or logical link between a careless and incompetent grievance process and the possibility of discrimination in these circumstances. The EAT highlighted that the Tribunal was not entitled to rely on unproven assertions of stereotyping without evidence. This case therefore confirmed the above burden of proof test is still good law but that inferences drawn by Tribunals should not be based solely on unreasonable behaviour without logic.

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