Proving discrimination

Case 1: The facts

Ms Barton worked in the financial sector and discovered she was being paid considerably less than her male counterparts. She claimed discrimination and equal pay with her male comparators.

The ruling

The EAT set out the following two tests on proving discrimination:

1. It is up to the applicant to prove to the tribunal that, on the balance of probabilities, discrimination had taken place. This assumes the employer cannot adequately explain the discrimination. Without such proof the claim would fall. But the tribunal has to bear in mind that it is unlikely that the applicant would be able to show direct evidence of discrimination, since few employers are likely to admit this, so that the tribunal would have to rely on inferences. At this stage it does not need firm proof. 2. Once the applicant has proved the facts, from which inferences of discrimination could be drawn, the burden of proof shifts to the employer. The employer has to prove, again on the balance of probabilities, that the treatment was in no sense on the ground of sex. Since it is equally difficult for the employer to prove this, the tribunal would have to draw inferences from matters like the employer's explanations for failing to deal properly with the questionnaire procedure or to implement the code of practice. The claim has now been referred back to a new tribunal for it to hear the case and set compensation.

* Barton v Investec Henderson Crosthwaite Securities [2003] IRLR 332

Case 2: The facts

Dr Anya was not selected for a post as a research assistant and alleged discrimination in favour of a white applicant. He claimed that there had been conscious or unconscious motivation on the part of the employer and late availability of documentation for the post, in breach of procedure. A tribunal ruled that there was no evidence of race discrimination. Anya argued that the tribunal had failed to consider the cumulative effect of a series of incidents highlighted in his claim.

The ruling

The EAT set out the test that should be applied in this type of case:

1. Where an applicant is complaining about a series of actions, the tribunal must first find out where the truth lies in relation to each incident and what it indicates in terms of racial bias. 2. The tribunal should then look to see whether a series of acts which, taken separately appear to have an innocent explanation, takes on a less than innocent complexion if the cumulative effect is considered in conjunction with other evidence.

* Anya v University of Oxford & Roberts EAT/0294/02

Case 3: The facts

Kamlesh Bahl was vice president of the Law Society and widely tipped to be its first female (and black) president. Amid allegations of bullying and harassment Bahl resigned. She claimed that the way the complaints had been dealt with were on the grounds of her sex and/or race. Bahl won her claim at an employment tribunal.

The ruling

The EAT ruled against Bahl on four key points:

1. If the evidence does not satisfy the tribunal that there is discrimination on the grounds of race or of sex considered independently, it is not open to a tribunal to find that there is discrimination when both are taken together. 2 Where the complaint refers to the conduct of the employer (or employer's agents) the tribunal has to consider whether there are other factors to explain the conduct other than race and sex discrimination. 3. It is important not to confuse inappropriate language that might cause offence with racist language. While all racist language is offensive, not all offensive language is racist. 4. The employer is only vicariously liable for the actions of employees and agents. If the tribunal finds that the employee or agent is not liable it cannot transfer liability to the employer.

* The Law Society v Bahl [2003] IRLR 640