Burden of Proof

10 June 2014


A recent employment tribunal case has clarified whether it is appropriate to look at allegations individually or as a whole

Barnaby Large of No.18 Barristers Chambers has provided this useful case summary.

When dealing with a multitude of discrimination allegations, may employment tribunals go beyond the first stage of the burden of proof test to look at 'the reasons why' and should they look at the allegations individually or as a whole?

Yes to the first question and holistically, taking a step back after analysing each allegation, to the second held the EAT in Fraser v Leicester University.

The Claimant, a black Afro-Caribbean professor of economics employed by the First Respondent, raised a total of sixty-six allegations of discrimination against his employer. The employment tribunal assessed each before it stood back to consider the full picture.

In assessing burden of proof, the employment tribunal did not stop at the first stage of the Igen v Wong criteria (facts on which the tribunal could conclude discrimination) but assessed the reasons why the Respondent behaved as it did.

After dismissal of the claim, the Claimant appealed, asserting the employment tribunal analysed the case in a fragmented fashion and, by considering the reason for treatment, required the claimant to demonstrate this was linked to race.

The EAT (HHJ Eady QC presiding) dismissed the appeal. Applying Shamoon v Ulster Constabulary, it was open to the employment tribunal to examine the reason for the Claimant's treatment and this effectively put the spot light on the Respondent to establish a non-discriminatory reason.

In addition, addressing each complaint separately and then considering them holistically to see both wood and trees was compliant with Qureshi v Victoria University.