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DIRECT DISCRIMINATION - BURDEN OF PROOF GUIDANCE (1)

Updated: 01 January 2008.

The law:
Sex Discrimination Act 1975, s.63A;
Race Discrimination Act 1976, s.54A;
Disability Discrimination Act 1995, s.17A(1C);
Burden of Proof in Sex Discrimination Directive 97/80/EC, adopted 15 December 1997;
Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660, Reg.29;
Employment Equality (Sexual Orientation) Regulations 2003, SI 2003/1661, Reg.29.

Also the case law of the Court of Appeal which sets out revised guidance on the burden of proof in discrimination cases as stated in -

Wong v Igen Ltd; Emokpae v Chamberlain Solicitors; Webster v Brunel University (2005) ICR 931; (2005) EWCA 142; (2005) 149 SJ 265.
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Changes have been made in recent years to the burden of proof criterion in direct discrimination cases. These changes are stated in the various sections of Acts and Regulations as listed above. The Court of Appeal, when hearing the conjoined appeals of the three cases above, gave guidance on the interpretation and application of these statutory changes and case law to employment tribunals when tribunals determine complaints of direct sex discrimination. This guidance applies also when determining complaints about other kinds of direct discrimination which are prohibited by legislation.

When delivering judgment in the three cases on the 18th February 2005, the Court of Appeal revised and approved the original guidance given by His Honour Judge Ansell, who presided in the sex discrimination case of Barton v Investec Securities Ltd (2003) ICR 1205, as set out in paragraph 25 of his judgment in that case when he reviewed the law in the light of the insertion of s.63A into the Sex Discrimination Act 1975. In practical terms, the guidance consists of procedural steps which employment tribunals should follow when determining a complaint of direct discrimination. This guidance is now known as the Barton guidance.

Under the new provisions, if a claimant can show that he or she has been treated less favourably than others in circumstances which are consistent with that treatment because of her or his sex, race, disability, sexual orientation, age, religion or belief, a tribunal can draw an inference that such treatment was discriminatory unless the respondent can satisfy the tribunal that there is a legitimate explanation.

Note: 'sex discrimination' means discrimination on the grounds of a person's gender in the sense that adverse discriminatory treatment occurs where a person is treated less favourably than a member of the other gender would be treated because of her or his gender, be they male or female: see s.1(1)(a) SDA 1975. For example, a male employer or colleague may touch a female employee or colleague in a way in which he would not touch a male employee or colleague. The same applies to something said that would not be said to a male employee or colleague. Or an employer may pay a female employee less remuneration than he may pay a male employer because of her gender and the assumptions and prejudices based on her gender in which case she may wish to consider making a claim under the Equal Pay Act 1970. An employer may also pay female employees less because of occupational segregation brought about and maintained by outdated traditional practices in which groups of predominantly female employees are employed in jobs or grades which are mainly low-paid from those occupied by groups of predominantly male employees which are often higher paid.

Note: 'discrimination' means 'treating a person in a particular way, usually adversely, in relation to another person because of that person's gender, race, disability, sexual orientation, age, religion or belief.' 'Treated' means 'acted towards' and 'behaved towards.'

The procedural steps consist of two stages:

stage one: -

the claimant must prove -
on the balance of probabilities -
facts from which the tribunal can conclude -
in the absence of an adequate explanation from the employer -
that the employer has committed an act of unlawful discrimination against the claimant;

stage two: -

if the claimant is able to prove 'such facts' -
it is then for the employer to prove that it did not commit (or is not to be treated as having committed) that act, and -
in order to discharge that burden, the employer must prove -
on the balance of probabilities -
that the treatment was in no sense whatsoever for a reason based on the grounds of sex, race, disability, sexual orientation, age, religion or belief.

Section 63A(2), Sex Discrimination Act 1975 sets out the two-stage test under which a claimant bringing a sex discrimination claim must prove primary facts from which an inference of discrimination could be drawn (Stage 1) - otherwise the claim will fail.
If the claimant succeeds, the burden shifts to the employer to provide a non-discriminatory explanation for the treatment in question (Stage 2). If the employer fails in that task, the claim will succeed.

Note: it is insufficient for the claimant to: (a) prove a difference in sex and (b) a difference in treatment. A claimant must prove facts from which a tribunal could conclude that the respondent had committed an act of discrimination: Madarassy v Nomura International plc (2007) EWCA Civ 33, Court of Appeal.

This is the revised BARTON guidance as amended and approved by the Court of Appeal: -

Pursuant to s.63A of the Sex Discrimination Act 1975, it is for the claimant who complains of sex discrimination to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part 11 or which by virtue of s.41 or s.42 of the Sex Discrimination Act 1975 is to be treated as having been committed against the claimant. These are referred to below as 'such facts.'

If the claimant does not prove such facts he or she will fail.

It is important to bear in mind in deciding whether the claimant has proved such facts, it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention, but merely based on the assumption that "he or she would not have fitted in."

In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

It is important to note the word 'could' in s.63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw, in accordance with s.74(2)(b) of the Sex Discrimination Act 1975, from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the Sex Discrimination Act 1975.

Likewise, the tribunal must decide whether any provision of any relevant Code of Practice is relevant and if so, to take it into account in determining such facts pursuant to s.56A(10) of the Sex Discrimination Act 1975. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not the ground for the treatment in question.

Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.

Note: the two-stage test is judicial guidance and not statute law. That being so, the failure by a tribunal to follow it explicitly is not an error of law: Brown v London Borough of Croydon (2007) EWCA Civ 32, Court of Appeal.

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