News

16/02/2023

Alex Shellum successful in EAT case concerning the shifting burden of proof under the Equality Act 2010

News

The EAT handed down judgment in Henna Jaleel v Southend University Hospital NHS Foundation Trust [2023] EAT 10 on 3 February 2023.

HHJ Auerbach, sitting as part of a full panel, held that the Tribunal had correctly directed itself as to the law relating to the complaints and the shifting burden of proof under s.136 EqA 2010, and applied it to the facts found. Consequently, the appeal was in reality a perversity appeal, as the Respondent had invited the EAT to so find. The Tribunal’s decisions on the burden of proof were not perverse and the appeal was therefore dismissed.

The judgment provides a helpful summary of the approach to be taken by Tribunals considering the shift of the burden of proof under s.136 EqA 2010, and reiterates the oft-made point that Tribunals are not obliged to refer in their decisions to every feature or detail of the evidence presented to it.

Background

The Claimant was employed by the Respondent as a consultant in sexual health medicine. From 2015, she was appointed to an additional role as a Director of Medical Education (“DME”) on a three-year fixed term contract. Her predecessor, who held the role for nine years and who was not of her race, did not have his role readvertised during his tenure.

Before the end of her three year tenure, the Claimant underwent a period of sickness absence. During her absence a colleague was appointed as Associate DME to cover the Claimant’s responsibilities. The Claimant declined to resume the duties of the DME role on her return to work and raised an internal grievance, including against her line manager.

Her line manager decided to readvertise the DME post at the end of the three-year term. The Claimant applied for the position and was interviewed. When she attended for interview, her line manager was on the panel and the Claimant asked that he be recused. The line manager initially refused to step down.

The Claimant complained that the decision to readvertise the DME role was an act of direct race discrimination and that the conduct of the line manager, who was supported by an HR manager, in the exchanges about recusal at the interview amounted to unlawful harassment related to race.

At first instance, the Tribunal found that the burden of proof had not shifted to the Respondent on the facts of the case. Accordingly, the claims of race discrimination were dismissed. The basis of the appeal was that the Tribunal had erred in law in deciding that the burden did not shift – in particular, the Tribunal failed to make findings of fact in relation to relevant matters from which an adverse inference could be drawn.

Legal principles

HHJ Auerbach’s judgment offers a helpful restatement of the law relating to the shifting burden of proof provision in s.136 EqA 2010 and offers clarification as to the consequences of certain dicta made on this vexed topic over the years. In particular:

• The dictum of Mummery LJ in Madarassy v Nomura International plc [2007] ICR 867, CA, that “[t]he bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination” is not a rule of law. In Madarassy, it was in response to a submission that the burden automatically, in all cases, is shifted merely by a difference in status and in treatment. However, the question of whether to draw an inference and what that inference might be, and whether the burden shifts, is situation and fact-specific.
• While the initial burden is on the Claimant to prove facts sufficient to shift the burden, the Tribunal should nevertheless consider all of the facts, from whichever party the evidence originated, when deciding whether there is some fact or feature which it can identify as potentially capable of supporting an inference of discrimination, per most recently Lord Leggatt’s judgment in Royal Mail Group Limited v Efobi [2021] ICR 1263 at [30].
• Though the authorities indicate that the employer’s substantive explanation for conduct generally does not fall to be considered at the first stage of deciding whether the burden shifts, the Tribunal may take into account inconsistent, untrue or problematic explanations for conduct given by an employer as something that could support an adverse inference and cause the burden to shift. That is not, however, a rule of law or automatic consequence – it is a fact and context-sensitive matter for the appreciation of the Tribunal, as in Raj v Capita Business Services Limited [2019] IRLR 1057.
• In a claim of unlawful harassment, it is not sufficient to shift the burden of proof under s.136 EqA 2010 for a claimant to demonstrate that they had been subjected to unwanted conduct – claimants are required to make out a prima facie case that the conduct was related to the protected characteristic in question, as in Raj.
• The exercise of reviewing and evaluating the particular facts and circumstances of the case, in order to decide whether the burden shifts, is one for the appreciation of the Tribunal. The EAT will only intervene in such cases where the Tribunal has wrongly stated or misapplied the law, or reached a perverse conclusion.

Judgment

In upholding the Tribunal’s decision that the Claimant had not shifted the burden in the instant case, the EAT found that the Tribunal had made a correct self-direction on the law. Consequently, as submitted by the Respondent, the Claimant could only succeed by demonstrating that the Tribunal’s decision that the burden had not shifted on the facts was perverse.

In upholding the Tribunal’s decision that the burden had not shifted to the Respondent in respect of the decision to readvertise the DME post, the EAT inter alia, in response to the Claimant’s submission that no other comparable time-limited role was readvertised, agreed with the Respondent that the Tribunal was not obliged to set out every feature or detail of the evidence that was presented to it.

On the evidence before the Tribunal as shown to the EAT, the EAT could not conclude that the evidence presented to the Tribunal painted such a compelling picture that the decision to readvertise was so starkly anomalous that it would have been perverse not to treat that evidence as supporting a shifting of the burden on the issue.

In upholding the Tribunal’s decision that the burden had not shifted to the Respondent in respect of the line manager’s initial refusal to recuse himself from the interview panel, the EAT held that the fact that the Claimant had established the unwanted conduct element of a harassment claim was not sufficient without more to shift the burden of proof, as in Raj. Additionally, the criticisms which were made of the line manager by the Tribunal below were in the context of a different legal test, namely whether or not the conduct amounted to a breach of the implied term of trust and confidence. It was not perverse for the Tribunal not to conclude that the burden shifted on the question of whether the line manger’s conduct was related to race.

Accordingly, the appeal was dismissed.

The judgment can be read here.

Alex Shellum of Old Square Chambers acted for the successful Respondent and was instructed by Jonathan Lewis of Capsticks Solicitors LLP.