Since October 2001, courts have grappled with the concept of reversal of burden of proof introduced by the Burden of Proof Directive and implemented by statutory amendment to the Sex Discrimination Act and Race Relations Act (and, subsequently, to the Disability Discrimination Act, Employment Equality (Religion and Belief) Regulations and Employment Equality (Sexual Orientation) Regulations). In summary, the statutory provisions establish a two-stage approach; the complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation from the respondent, that discrimination had occurred; if this is satisfied, then the respondent must prove that he did not commit the discrimination alleged. This issue continued to cause confusion despite the guidance given by the Court of Appeal in Igen v Wong (2005) which provided that the employee must establish a prima facie case of discrimination (ie, evidence of less favourable treatment on one of prohibited grounds) for the burden of proof to transfer and it is then for the employer to prove, on the balance of probabilities, that the less favourable treatment complained of was not on the prohibited grounds.

You may remember that Ms Madarassy brought claims of sex discrimination, victimisation and unfair dismissal. Her claim of unfair dismissal and most counts of sex discrimination were rejected by the tribunal and the EAT. However, the outstanding issues which went to the Court of Appeal included whether the burden of proof had been properly applied and whether Ms Madarassy had suffered discrimination by a failure to carry out a pregnancy risk assessment. The Court of Appeal in Madarassy v Nomura International upheld the Igen v Wong approach, but confirmed that judicial guidance is not a substitute for the statute itself and there is no error of law if a tribunal fails to work through such guidance paragraph by paragraph. However, clarification was given on how the burden of proof should work. A difference in status and difference in treatment are not enough to shift the burden of proof; those facts merely indicated a possibility of discrimination. The Court of Appeal approved the reasoning in Laing v Manchester City Council (2006) that in considering whether a claimant had a prima facie case, a tribunal could consider any evidence adduced by the employer that undermines the claimant's arguments that a prima facie case exists. A claimant is unlikely to have been prejudiced where the tribunal has acted on the assumption that the burden may have shifted and has considered the employer's explanation. From a practical point of view, this legal reasoning may have little impact on the way that an employer would actually prepare and present its evidence in defence. It will really only impact on the way the legal argument is made and the judgment given.

The Court of Appeal also upheld the decision that the claimant had not suffered unlawful discrimination as a result of the failure to carry out a risk assessment in accordance with regulation 16 of the Management of Health and Safety at Work Regulations 1999. The Court of Appeal held that the duty only arises where the work is of a particular kind which could involve special risk to a new or expectant mother or her baby. However, it is clearly good practice for employers to undertake a risk assessment for all pregnant employees to identify any potential hazards in their working environment and suggest solutions. (Madarassy v Nomura International)