Mark Shulman*, Consultant Solicitor at Keystone Law
*
**DISCRIMINATION
Burden of proof**
Section 136 EqA 2010 makes provision for the burden of proof in discrimination cases under the Act, as follows:

"136. Burden of proof

(1) This section applies to any proceedings relating to a contravention of this Act.

(2) 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.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision."

But what does this test mean in practice? Two recent cases (both before the President of the EAT) have considered this issue.

*Background
*Firstly, in [Secretary of State for Justice & Anor v Dunn ]()UKEAT/0234/16/DM, the Claimant, Dr Dunn, was employed in HM Inspectorate of Prisons. In November 2014 he made an application for ill-health retirement on the grounds of his disability. The process for dealing with the application was a protracted one and it was not until 2015 that his application was successful.

The Claimant made various claims against the Ministry of Justice ("MoJ") and HM Inspectorate of Prisons ("HMIP") of unlawful disability discrimination in relation to his treatment, including in relation to the handling of his ill-health retirement application. Most of the claims were dismissed but his claims of unlawful direct disability discrimination and discrimination arising from disability succeeded.

Direct discrimination
The first successful claim in relation to direct discrimination concerned not putting into place adequate support mechanisms for the Claimant at his return to work interview in May 2014. This included the Respondents not conducting a "stress risk assessment".

The ET concluded "if there something [sic] from which an inference should be drawn the burden will shift to the Respondents and we should consider whether the Respondents have discharged the burden. We are not satisfied that the Respondents have demonstrated that the failure to put in place adequate support mechanisms was not because of the Claimant's disability".

The second successful claim related to unreasonably delaying the Claimant's application for ill health retirement in November 2014 and failing to consider his 10 years' service for pension purposes. On this the ET decided that "The Ministry of Justice operates an arcane and unwieldy system". It was satisfied that the Claimant was subjected to a detriment and the burden of proof shifted to the MOJ, then deciding that the MOJ had failed to discharge the burden on them.

The Respondents' appeal challenged these findings on three grounds:-

Allegations not put
Firstly, it was argued that reasons for the less favourable treatment relied on by the Claimant were not put to the alleged discriminators at the ET hearing - necessary both on the grounds of natural justice and as a part of examining the thought processes of the relevant decision makers.

The EAT agreed that in all but the most obvious cases involving direct discrimination, a critical part of the ET's consideration is the mental processes (whether conscious or subconscious) of the putative discriminator.

The Claimant's case at the ET concerning the failure to support his return to work interview was based on the manager's "antipathy" to depression. However, such an allegation had not in fact been put to her in cross-examination and the manager concerned was not asked any questions exploring whether she had antipathy towards depression or its consequences.

In terms of the allegation relating to the delayed ill health retirement, the case advanced by the Claimant was that the delay in dealing with his retirement application was also influenced by antipathy towards disability. Looking at the notes of what had happened during cross-examination, the EAT concluded that these allegations of direct discrimination were not properly put to the relevant witnesses and the thought processes and reasons for their treatment of the Claimant were simply not explored.

No findings
Secondly, the Respondents contended that the ET was wrong in upholding claims of direct discrimination without determining what facts operated on the minds of the relevant discriminators and without making proper findings of primary facts such as would justify the shifting of the burden of proof.

Thirdly, the appeal also contended that the ET had failed to give any or adequate consideration to relevant evidence of non-discriminatory reasons for the Claimant's treatment.

*Two-stage process not mandatory
*The EAT stated that whilst it was not mandatory for an ET to adopt a two-stage approach in deciding questions of proof in a discrimination case, the ET had done so in the present case. Therefore, before the burden of proof could shift, the Claimant had to prove facts from which the ET could conclude (in the absence of an adequate explanation), that (i) there was less favourable treatment in relation to each of the detrimental acts relied on, and (ii) that the reason for that treatment was at least in part due to his disability.

But the ET had not engaged in that task. It had not identified its findings of fact or the evidence that permitted such a conclusion.

No comparative analysis
In relation to the return to work interview, the ET did not engage with the relevant manager's thought processes or in any comparative analysis of the way in which she treated or would treat others. Further, the ET's finding that the burden shifted was all the more demanding of an explanation given that the ET had previously concluded that the relevant manager's failure to undertake the stress risk assessment was because of incompetence rather than unlawful discrimination.

Secondly, it would be astonishing for a person subconsciously motivated by discriminatory considerations to act in a discriminatory fashion in a haphazard way. The ET had rejected the greater part of the allegations of unlawful discrimination against the Claimant's manager. Therefore, an explanation from the ET was required as to why they thought that the Claimant's disability had not operated on the manager's mind in relation to most of her treatment of the Claimant, but it had done so in relation to the failure to carry out the stress risk assessment.

With regard to early retirement, there had been evidence of other early retirement cases with differing time periods for processing the applications. However, no questions were asked about the individual circumstances of those cases. There was no evidence that a case that took two years involved a person with a disability or that a case that took two months did not involve such an individual. Operating an arcane and unwieldy process for early retirement did not of itself come anywhere close to being material from which an inference of less favourable (not unfavourable) treatment could be drawn.
There were findings of unreasonable treatment, but without more they could not justify a conclusion that a person without disability would have been treated in any better or more favourable way. The ET had not engaged in any comparative analysis as to how or why others without the relevant disability fared or would have fared under the ill-health retirement process. Further, the ET had failed to engage at all with the mental processes of the relevant decision makers.

The ET should have undertaken a comparative exercise to address the question of less favourable treatment, rather than jumping to an unsupported assumption. It was necessary for the ET to scrutinise all of the evidence so that it could properly assess whether the explanations given by the Respondents were sufficient to establish at least a prima facie case that the Respondents treated people less favourably because of disability. That was not done at any stage and so the ET's findings of unlawful direct discrimination could not stand.

[The Chief Constable of Kent Constabulary v Bowler ]()UKEAT/0214/16/RN is another recent case which came before the President of the EAT in relation to the section 136 EqA burden of proof.

Background
The Claimant was an experienced police officer with 25 years' service. He passed the Sergeant Exams and was eligible to apply for any vacancies for the role of sergeant by applying through a promotion board and he was expected to gain experience in an acting-up capacity if possible before doing so. The Claimant obtained some experience in an acting-up capacity and was praised for his performance in that role. However, following a change in his management team, the Claimant reported to a new Detective Inspector. The Claimant's considered that from that time, his attempts to obtain promotion were thwarted.

He pursued an internal grievance and appeal alleging race discrimination. In summary, his case was that these were not treated with the seriousness they deserved and the police officers dealing with his grievance process discriminated against him on race grounds and they (and others) victimised him.

The Claimant made six allegations of less favourable treatment on race grounds and eight complaints of victimisation. Of the six race discrimination complaints, the ET upheld a complaint that a DCI Somerville failed on race grounds to investigate the Claimant's grievance properly and produced a report full of inaccuracies. It also upheld a complaint that Superintendent Very informed the Claimant that his grievance appeal was unsuccessful and that Superintendent Very considered DCI Somerville's report to be thorough and even-handed. Seven of the eight victimisation complaints were upheld.

The law
As stated by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258 (in relation to previous statutory provisions concerning the burden of proof), it is not sufficient for the complainant simply to prove facts from which the ET could conclude that the Respondent "could have" committed an unlawful act of discrimination. The EAT confirmed that this approach remained correct under the EqA 2010. Therefore, bare facts of a difference in treatment only indicated a possibility of discrimination. They were not, without more, sufficient material from which an ET "could conclude" that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.

As confirmed by the Supreme Court in [Hewage v Grampian Health Board ]()[2012] IRLR 870, "the prima facie case must be proved, and it is for the claimant to discharge that burden". Further, "It is common ground that an error in law is made by a tribunal if it finds less favourable treatment on racial grounds where there is no evidence or material from which it can properly make such in inference" (Effa v Alexandra Health Care NHS Trust (unreported CA, 5 Nov 1999).

*Shift in burden of proof
*The Claimant complained about the way in which his grievance was handled by the Respondent. In the ET's judgment, there was a prima facie case of less favourable treatment on race grounds. It considered that the Claimant's grievance was dealt with incompetently and that the person who conducted the investigation (DCI Somerville) had a lackadaisical approach which "indicated that he held a stereotypical view that the Claimant was being oversensitive about being treated badly because of his race. He would not have treated another grievance in a similar offhand manner". On that basis, the ET considered that the burden of proof shifted to the Respondent.

The ET thought that as a very senior officer the failures by DCI Somerville could not be passed off as incompetent or unreasonable and therefore had nothing to do with race. Once the burden of proof had shifted, no explanation had been provided by the Respondent for the way in which the grievance was handled.

No obvious link
Was there adequate material to enable the ET to reach such a conclusion? (i.e. was there a prima facie case of less favourable treatment by DCI Somerville on the ground of race)?

No, said the EAT. There was no obvious link between having a lackadaisical approach and having a stereotypical view about race discrimination complainants. The ET had not provided any explanation as to why a lackadaisical approach indicated the holding of a stereotypical view about oversensitivity leading to race discrimination complaints. There needed to be evidence from which an ET could properly infer that a stereotypical assumption was made and that the assumption operated consciously or subconsciously on DCI Somerville's mind when treating a complainant in the way alleged.

But no evidence was identified by the ET to that effect and no factual findings were made to support the ET's conclusions. There was no evidence of DCI Somerville's approach to other grievances (involving white officers) because this was the first grievance he had ever conducted and the ET made no findings of fact about his conscious attitude to grievances generally. The ET found that DCI Somerville was out of his depth and ill-equipped to deal with the Claimant's grievance, both of which were possible explanations for his incompetent handling of the grievance.

Wrong leap to shift burden
The EAT decided that in these circumstances the ET had made a wrong leap from a finding that DCI Somerville handled the grievance process incompetently and had a lackadaisical attitude (both unreasonable but not in themselves less favourable treatment), to a conclusion that this by itself (without any other apparent basis for it) indicated a stereotypical view of race complainants. Accordingly, the ET was not entitled to conclude that there was a prima facie case of less favourable treatment on race grounds and the finding of unlawful race discrimination against DCI Somerville could not stand.

Adequate material to shift burden
Conversely, the second ground of appeal failed as the ET had been correct to conclude that the burden of proof shifted to the Respondent. This aspect of the appeal related to a Detective Superintendent Very's rejection of the Claimant's internal appeal and a failure to provide a proper outcome report or to respond to errors raised by the Claimant in his internal grievance appeal.

The EAT decided that there was "adequate material" from which the ET could conclude that the Claimant had established a prima facie case of discrimination, so causing the burden of proof to shift. The ET had identified a number of pieces of evidence to form its view including:

(a) irrelevant material included by DS Very in his witness statement which hinted at a stereotypical view (that without justification, black and minority ethnic officers complained about race when they fail to achieve promotion);

(b) the finding that there was a disingenuous attempt by DS Very to say that the Claimant's race complaint had been abandoned at the internal grievance appeal stage when it had not; and

(c) evidence that DS Very was prepared to prejudge the outcome of the Claimant's grievance appeal before hearing it.
On that basis there had been no error of law by the ET; it had been entitled to conclude that the reason the grievance was not taken seriously by DS Very was his view about the oversensitivity of race complainants including the Claimant. Therefore the ET's finding of discrimination by DS Very was upheld.

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Comment
*The EAT explained in this case that in discrimination cases "All explanations identified in the evidence that might realistically explain the reason for the treatment by the alleged discriminator should be considered". Merely because an ET concludes that an explanation for certain treatment is "inadequate, unreasonable or unjustified" does not by itself mean the treatment is discriminatory; it is a sad fact of life that people often treat others unreasonably irrespective of race, sex or because of another protected characteristic.

But evidence about the unreasonable treatment is not entirely irrelevant because an ET might more readily reject the explanation given for such treatment than it would if the treatment were reasonable -  it goes to credibility in terms of the explanation for the treatment. However, it might be the case that a person who has not acted in a discriminatory way may nonetheless sometimes give a false reason for the behaviour (e.g if the true reason casts them in a less favourable light or it discloses incompetence or insensitivity). But even if the alleged discriminator has been less than frank in the witness box, that would of itself provide little, if any, evidence to support a positive finding of unlawful discrimination (Bahl v the Law Society [2003] IRLR 640).*

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Pleadings
Had an ET wrongly decided in favour of a Respondent when the decision included grounds that had not been pleaded? Yes said the EAT in [Yasin v The Secretary of State for Justice ]()UKEAT/0270/16/BA.

*Background
*The Claimant worked for the Respondent in the Office of the Public Guardian ("OPG") as a temporary agency worker through the Brook Street Agency. He had periods of sickness absence from work. The OPG offered him a fixed-term contract of employment, conditional on completion of a health questionnaire and pre-employment checks. In July 2014 the Claimant went off sick after admission to hospital for colitis. The Claimant notified his manager at the OPG that he was in hospital but he did not give any details of why. Then, in August 2014 the job offer was withdrawn and the temporary contract was terminated. Brook Street were informed that this was because of  "the extended length of [Mr Yasin's] absence from work and a review of the previous twelve months". An internal OPG email stated that: "the business have asked that [Mr Yasin] should not be offered a FTC … He has just been dismissed as agency staff for his attendance". After an internal review the OPG maintained its decision on the grounds of the Claimant's attendance record and because managers "had been given no information about the nature of the illness on either occasion and were left therefore in an unsustainable position".

The Claimant made ET claims for discrimination arising from disability and a failure to make reasonable adjustments, but those claims were dismissed. The ET found that:

* in relation to the duty to make reasonable adjustments, disregarding the disability-related absence would not have avoided the disadvantage Mr Yasin suffered because the offer would have been withdrawn anyway because of the Respondent's conclusion about Mr Yasin's behaviour and the breakdown of trust and confidence; * in the section 15 EqA claim, withdrawing the offer was "justified" in order to achieve the legitimate aim of ensuring not only "regular" but also "effective" service from prospective employees, because the Respondent was entitled to consider that Mr Yasin's lack of communication had caused the breakdown of trust and confidence and so rendered his service ineffective.

Matters not pleaded
The Claimant appealed on the basis that the ET had taken account of matters that had not been pleaded by the Respondent. The EAT agreed. The allegation that the Claimant had made a deliberate decision not to supply information to the Respondent in a way which undermined trust and confidence (leading to the withdrawal of the conditional offer) were significant points that needed to be pleaded.

Although the Respondent's Amended Response made reference to what was said in the Respondent's August emails, there was no reference to a deliberate failure to communicate leading to a breakdown in trust and confidence, or to that being a reason for the termination of the assignment or to the withdrawal of the offer of employment. Therefore the Amended Response did not in the EAT's view plead either of the matters relied on by the ET for rejecting the claims. Those matters did need to be pleaded. Although the factual issues were to some extent aired at the hearing, the Claimant may have presented his case differently if he had been on notice of these points. For example, it may have been contended that the failure to communicate was itself something which arose in consequence of the Claimant's disability and/or that it required a suitable adjustment to be made.

Therefore, this was a case where the ET had decided matters on a basis which was rather different to that put forward by the parties (both factually and in argument) without the losing party having an opportunity to deal with it properly. For those reasons the ET's decision involved an error of law that could not stand.

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*Comment
There is a salutary warning in this case for those advising parties in ET proceedings. As indicated by the EAT, the pleadings must be such that all parties are properly able to deal with all relevant issues to be decided. This will arise at various stages in the proceedings such as at any Case Management hearing where the issues to be decided are to be considered or where (as in the present case) an agreed list of issues is presented to the ET at the start of the hearing. And witness statements and submissions to the ET also clearly need to cover all relevant issues.*

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Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here.