Burden of proof

Case 6: The facts

Barrister John Fernandez was dismissed as a result of a colleague's allegations of harassment. He claimed that his dismissal was unfair and amounted to race discrimination.

His employer said the sole reason for his dismissal was that the finding of harassment was upheld; its disciplinary policy stated that this amounted to gross misconduct, for which the usual sanction was dismissal. A tribunal held that Fernandez had been unfairly dismissed but not discriminated against.

The ruling

The main argument was whether the employer, given that it had unfairly dismissed Fernandez, had proved on the balance of probabilities that it had a genuine reason for the dismissal which did not amount to discrimination. In the absence of an adequate explanation, a tribunal is entitled to infer discrimination.

The Employment Appeal Tribunal (EAT) found that the managers who carried out the disciplinary and appeal hearings had taken the action they genuinely thought necessary under the terms of their disciplinary policy, even though they had relied too heavily on the policy.

The EAT held that this was a genuine explanation, so there were no grounds for inferring discrimination.

Fernandez v Office of the Parliamentary Commission for Administration & another UKEAT/0180/06