Business Law: Employment Appeals Tribunal ruling increases burden on employers, says Julian Outen

Julian Outen, Ellisons Solicitors

Julian Outen, Ellisons Solicitors - Credit: Archant

A recent judgment from the EAT (Employment Appeals Tribunal) has somewhat surprisingly slipped under the radar.

This fundamentally changes the approach to discrimination claims brought by employees, in that there is no burden on a claimant employee to prove the discrimination alleged.

Indeed, it is for the respondent employer to produce evidence to establish facts and/or a reasonable explanation so that the tribunal does not make an inference of discrimination. This is akin to a “guilty until proven innocent” scenario.

Until now there was quite a high burden placed on claimants to prove facts based upon which, in the absence of an explanation from the respondent, a tribunal could infer that discrimination had occurred. If they did this, the burden shifted to the employer to show the reasonable explanation and that this meant discrimination should not be inferred.

If the claimant couldn’t shift the burden in this manner, their claim would fail. This approach was based on the wording under the historic discrimination legislation.

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The Equality Act 2010 changed this because it is worded differently, but it has taken until now for the first appeal decision on the point to clarify that.

The correct approach for the tribunal now is simply to hear all of the evidence and make findings of fact at the end of the entire hearing, and decide whether it can conclude that discrimination has occurred.

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This is likely to place a much higher burden on respondent employers and means that evidence on all of the circumstances will need to be adduced, in order that a decision can be reached by the yribunal. This means that certain hearings will be longer and therefore more expensive.

It was also made clear by the EAT in this particular case that if a respondent fails to adduce evidence within its knowledge, without explanation, then it runs the risk that the tribunal will draw adverse inferences and from which a conclusion that discrimination has occurred could be reached.

•If you would like further information or assistance about this or any other employment issues then please contact Julian Outen, partner, Ellisons Solicitors, 01473 556900, email

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