One of the most striking (and lesser known) aspects of discrimination law is the “reverse burden of proof” (under section 136 of the Equality Act 2010). The “reverse burden” means that, in appropriate cases, the employer has to prove its innocence, and a failure to do so will lead to a finding of discrimination. Essentially, if an employee establishes a prima facie case of discrimination, the burden shifts on to the employer to explain why there has been difference in treatment. A failure to explain away adequately the reason for treatment can then prove fatal, as the tribunal can then go on to draw an adverse inference that the reason for treatment is due to discrimination.
The Employment Appeal Tribunal (EAT) case of Hussain v (1) Vision Security (2) Mitie Security Group Ltd (2011) examines the cases in this area, and demonstrates how easy it is for a tribunal to draw an adverse inference.
The claimant, then 64 years old, was one of three security guards based at a specific site. The other two were 34 and 36 years old. All three were informed that from 1 February 2007 they would no longer be required at the site, but would work as relief guards until a permanent post could be identified. Shortly afterwards, the younger two guards were placed into a permanent post at another site, and despite there being a vacancy for a third guard at the new site (which was subsequently filled by an external candidate) the claimant was not transferred to that permanent role. He brought a claim alleging direct age discrimination.
The explanation given by the manager for the difference in treatment was that he had spoken to all three about the move at a meeting on 21 January 2007, and the claimant had refused to move to the new site. However, this was contradicted by the claimant, whose evidence was supported by his two colleagues, that no such discussion had taken place. The tribunal accepted the claimant’s evidence, finding that the manager’s account was “unreliable”, and therefore the claimant had never refused to move.
However, the tribunal did not draw the adverse inference that the reason for the treatment was due to age discrimination because there was no other evidence supporting the view that the decision was in any way ageist. The claimant appealed on the basis that the tribunal had failed to apply correctly the principle of the reverse burden of proof.
The EAT upheld the appeal and found that this was a case where there was prima facie case of discrimination: there was a difference in treatment between the claimant and the younger guards which required explanation by the employer. As the employer was unable to provide an adequate explanation (because the manager’s account was found to be untruthful or unreliable) the EAT decided that the tribunal should have drawn the adverse inference that the reason for treatment was age discrimination. The EAT then ruled that discrimination had been proved and sent the case back to the tribunal to consider compensation.
In coming to its decision, the EAT considered the leading cases of Igen Ltd v Wong (2005) CA and Madarassy Nomura International plc (2007) CA. The EAT followed these earlier decisions in ruling that it is not an automatic process to draw an adverse inference once a difference in treatment or detriment has been identified; the process is situation specific and requires an assessment of facts. In the present case, the inference that the non-offer of a job to the claimant was significantly influenced by his age was a legitimate factual conclusion, given that the two other guards were considerably younger. It was, in the absence of anything else, the likely explanation, and therefore in this case it was correct to draw the adverse inference.
In many discrimination cases there is a conflict of evidence and the tribunal has to make a determination as to who gives the most credible account. As can be seen from the case of Hussain, tribunals (and the EAT) are ready, willing and able to draw an adverse inference of discrimination when the central pillar of the defence is found to be untruthful, even if there is little or no other evidence to suggest that the employer was acting in a discriminatory way. As ever, it is important to ensure that there is an adequate audit trail to substantiate non-discriminatory reasons for a management decision, so that employers mitigate against cases becoming “one word against another” and the risk of a finding of discrimination if the tribunal does not accept the employer’s account.
Hussain v Vision Security and Mitie Security Group ltd, EAT, 10 March 2011.