Discrimination - proving a point

Over the years it has become easier for employees to win discrimination claims because of changes to the law relating to the burden of proof.  However, the recent Court of Appeal decision in Madarassy v Nomura International plc acts as a reminder to employees not to be complacent when preparing their case, and as a reminder to employers to ensure their paperwork will withstand scrutiny by staff who wish to fish for damning evidence.

The law states that where an employee establishes a ‘prima facie case’ (ie proves facts from which a tribunal could conclude, in the absence of an adequate explanation, that the employer discriminated), the burden of proof shifts from the employee to the employer. In other words, it is no longer up to the employee to prove that the employer discriminated; it is up to the employer to prove that it did not discriminate.  The Madarassy case concerned the meaning of a ‘prima facie case’ (in the context of sex discrimination).

The Court of Appeal held that an employee must show more than simply a difference in status (in this case, sex), and a difference in treatment, between themselves and their chosen comparator.  It must be reasonable for a tribunal to conclude that the employer ‘had committed’ – not merely ‘could have committed’ – the act of discrimination.

Employers should be aware that an employee may, wherever possible, find and produce evidence showing how their circumstances are similar to those of their comparator.

By way of an example, a woman may believe that her employer’s decision to award her a smaller discretionary bonus than her male colleague was an act of sex discrimination.  When compiling her case, she will look to include evidence that shows, for example, her performance was as good as that of her comparator.  She may do this by digging out appraisals and e-mails praising her efforts etc. Whatever evidence she doesn’t have, she will ask the employer (or tribunal) to provide.  If the documents or information support the employee’s position, the employer will then bear the burden of proving there was a non-discriminatory reason for the difference in treatment.

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