Proving direct discrimination
Several recent employment law cases in the appellate courts have focussed on questions surrounding proof of direct discrimination. The operation of the so-called “reverse burden of proof” has been the subject of examination once again. So has the question of constructing or choosing the appropriate comparator.
The relevant statutory provisions are ss 13, 23 and 136 of the Equality Act 2010.
Section 13 defines direct discrimination as follows:
“13(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”
Section 23 deals with the question of the appropriate comparator, and reads in part:
“23 (1) On a comparison of cases for the purposes of 13 [direct discrimination] …there must be no material difference between the circumstances relating to each case.”
Taking these two sections together, they provide the test for an appropriate comparator where direct discrimination is alleged. If there is an actual comparator to consider (“A treats…others”), there must be no material difference between his or her characteristics and those of the claimant. Where the ET constructs a hypothetical comparator on the basis of the claimant’s case (“A…would treat others”) again there must be no material difference between the characteristics of that comparator and those of the claimant. In each case, of course, there is one crucial difference between claimant and comparator, namely the protected characteristic (e g race where racial discrimination is alleged etc).
Section 136 deals with the burden of proof , and reads in part:
“136 (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”
In effect, this means there is a two stage test. At the first stage, the burden of proof is on the claimant to to show facts from which the ET could decide that there had been discrimination. It is clear that the word “reasonably” must be implied before “decide” in that formula. If the claimant succeeds in the first stage, then the burden of proof is reversed, and the employer must show that it did not discriminate. In practice, this means that it must convince the ET of a non-discriminatory explanation for its behaviour.
The case of Efobi v Royal Mail Group Ltd [2019] EWCA Civ 18 illustrates both of these issues. Mr Efobi is a black Nigerian who was employed as a postman by the Royal Mail Group, and applied for a number of posts in IT and management in that organisation. He was unsuccessful in all his applications, and in due course claimed direct race discrimination in relation to 22 of them. Royal Mail did not put forward any evidence about the identity or qualifications of the successful candidates, and nor did Mr Efobi. He did not seek discovery (he was acting in person). The tribunal found that he had not shown facts from which it could decide that discrimination had occurred. There had been no relevant actual comparator. Even the race of the successful candidates was unknown in the majority of cases.
Mr Efobi appealed, and the EAT upheld his appeal, holding that s 136 of the 2010 Act meant that there was no burden on E to prove anything. It reasoned that the tribunal could draw inferences from the employer’s failure to call the actual decision makers (The employer had relied on evidence from two witnesses who had experience of their recruitment process, and the tribunal had accepted their evidence).
The employer appealed successfully against the EAT decision to the Court of Appeal. Sir Patrick Elias, who delivered the unanimous judgment of the CA, made it clear that the initial onus to prove direct discrimination was on the claimant . In determining whether the tribunal “could decide, in the absence of any other explanation” that the employer had discriminated (the first stage) no adverse inference could be drawn against the employer for failing to call particular witnesses. Inferences for such failure could only be drawn at the second stage, when the onus had shifted to the respondent. But the claimant had failed to discharge the onus which was placed on him at the first stage. He had not identified the characteristics of any comparator. This meant that he had failed to back up the assertions which he made with the necessary factual foundation. As a result, his claim must fail.
In Tywyn Primary School v Aplin (UKEAT/0298/17) Mr Aplin was an openly gay primary school head teacher. He met two 17 year old males on Grindr and the three of them had sex. The local authority set up a Professional Abuse Strategy Meeting which concluded that no criminal offence had been committed and no child protection issue arose.
But the School brought disciplinary proceedings based on an investigation by a local authority officer, Mr Gordon, and dismissed him. There were procedural errors amounting to a breach of the implied term of trust and confidence. Mr Aplin appealed against the dismissal (which meant his contract continued), but there were further procedural errors in the process. Before the appeal hearing, he resigned, claiming unfair constructive dismissal. and sexual orientation discrimination.
In considering discrimination, ET constructed two hypothetical comparators, both heterosexual. One was a man who had sex with two 17 year old females; the other a woman who had had sex with two 17 year old males. The ET decided this was a case where the reverse burden of proof applied.Sexuality underpinned the treatment of C. There were serious failings in the way he was treated, although the school had professional advice. The failings were so substantial and wide ranging as to allow an inference to be drawn that there was a particular reason for them which would not have applied to those hypothetical comparators. Hence it was possible to infer that the less favourable treatment he received was based on his sexual orientation,
The ET found the school was liable for Mr Gordon’s treatment of C. He was the investigating officer appointed by the local authority, and approached the investigation on the basis that C constituted a child protection risk, contrary to the conclusion of the Professional Abuse Strategy Meeting.
On the discrimination claim, the tribunal found that the way C had been treated meant that he had discharged the burden of proof, so that the burden shifted to the respondent. The employer had failed to provide an adequate explanation so as to satisfy the tribunal in relation to the second stage of their enquiry. As a result, the tribunal concluded that he had been subjected to sexual orientation discrimination.
The School's appeal against the finding of discrimination was dismissed by the EAT. There were sufficient facts from which an inference of discrimination could be drawn and the reversal of the burden of proof was justified. The investigating officer had not given an adequate alternative explanation for his conduct. The finding of discrimination was accordingly upheld.
In Sutton Oak Primary School v Whittaker (UKEAT/0211/18), the claimant was a primary school teacher. He was dismissed for being alone in a classroom with a male year 5 pupil during the lunch break, and offering him sweets. This conduct was in breach of guidelines issued to him for similar conduct some years earlier, which were still in force. His claims of unfair dismissal and direct discrimination on grounds of sexual orientation were upheld by the ET.
The ET had identified two potential comparators: a heterosexual male teacher found alone with a male pupil, and a heterosexual male teacher found alone with a female pupil. The ET said that on balance it preferred the latter as a hypothetical comparator, but without explaining why. It did not, in any event, ascribe to the hypothetical comparator any of the attributes of the claimant other than being alone with the child.
The employer appealed against the finding of direct discrimination, and succeeded in the EAT. Choudhury J emphasised that this was not a case where, due to clear positive findings pointing to discrimination, the identification of a hypothetical comparator was unnecessary. The ET had not specified that the hypothetical comparator should have been the subject of a warning for inappropriate contact with children and had been subject to clear guidelines from the employer which were in operation.These were “material omissions which rendered the hypothetical comparator inappropriate”. In other words, the ET had failed to satisfy the statutory test in s 23 of the 2010 Act for constructing a hypothetical comparator.
The appeal was upheld and the finding of direct discrimination on grounds of sexual orientation was set aside. The question was remitted to a differently constituted ET.
Taken together, these appellate cases show the need for careful consideration of where the burden of proof lies, and the importance of finding or constructing an appropriate comparator. Nobody should claim that discrimination law is simple!
John Sprack
Newsletter May 2019
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