A recent victory at an Employment Appeal Tribunal serves as a reminder to employers in similar legal situations to prove their actions were not tainted by discrimination.
The eventual victory of Mrs A Field after initially unsuccessful claims of workplace disability discrimination should serve as a reminder to judges and employers of the requirement for tribunals to consider the shift of the burden of proof, which is a party’s duty to produce sufficient evidence to support an allegation or argument, onto respondent employers, say Field’s supporters.
In short, this shift puts responsibility in the hands of employers to prove their actions weren’t discriminatory, rather than the employee claimant trying to prove discrimination, making this change a more empowering experience for the employee.
Field, represented by Carole Spencer of Excello Law and barrister Daniel Brown of 3 Paper Buildings, claimed in a 2020 employment tribunal that she had been discriminated against due to her disabilities, with her employer failing to make reasonable adjustments. After resigning from employment, she brought claims of discrimination and constructive unfair dismissal, but her claims were unsuccessful.
Field’s legal team then successfully argued in an Employment Appeal Tribunal that the 2020 tribunal erred in law, meaning it made an error by failing to address the facts presented as potentially sufficient to shift the burden of proof to the respondents, namely the employers. The successful judgment was handed down on 5 May 2022.
While the burden of proof to ‘prove’ the discrimination usually falls to the claimant, such as an employee, this can be shifted to the respondent employer under a two-step process.
The initial step is an assessment to determine whether the claimant has established facts from which a tribunal could conclude, on the balance of probabilities, that the alleged discrimination has occurred; a prima facie case, which means based on the first impression and accepted as correct until proved otherwise.
If the employee succeeds, the burden shifts to the employer to explain the treatment and seek to satisfy the tribunal that it was not based on discrimination.
In the initial 2020 tribunal, Judge Postle seemed to disregard potentially discriminatory messages and failed to consider their value as evidence in shifting the burden of proof. This decision was found to be errant in the latter appeal, and the judge concluded that “the employment tribunal failed to analyse evidence that arguably was sufficient to shift the burden of proof.”
Carole Spencer at Excello Law, the law firm acting for Mrs Field, said: “This ruling in my client’s favour is a stark reminder to employers; firstly, of the fact that these communications are disclosable; they can and will come to light, and secondly that a discriminatory approach or attitude shown elsewhere in the evidence can shift the burden of proof to the respondent, leaving them with the burden of convincing a tribunal that their actions overall were not tainted by discrimination.”
