Key takeaways
Tribunal misapplied reverse burden of proof
The tribunal relied on irrelevant factors that didn’t indicate racial motivation.
Delay in giving feedback not linked to race
The reasons considered did not logically suggest discrimination.
EAT sets aside discrimination finding
The EAT ruled the burden of proof never shifted, overturning the tribunal’s decision.
The EAT recently held that an employment tribunal erred in its approach to the application of the reverse burden of proof in a race discrimination claim arising from an unsuccessful promotion application.
Legal background: reverse burden of proof
A reverse burden of proof applies in discrimination claims, which means that where a worker proves facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an unlawful act of discrimination, the tribunal must uphold the complaint unless the employer proves that it did not discriminate.
Factual background
An ambulance service employee, S, who is a Black man, brought a race discrimination claim after his fourth rejection for promotion. He had been interviewed by a two-person panel, made up of one black and one white manager. The four successful candidates (all of whom were White) scored more highly in the selection process. Following his rejection, S was given some vague verbal feedback. He later requested written feedback. However, it took nearly three months – during which S complained to his employer of discrimination – before he was given brief written feedback. In that written feedback, the chair of the interview panel (the Black interviewer), provided S with no feedback whatsoever. S later brought race discrimination claims, alleging that he had been unsuccessful in his application for promotion because of his race, and complaining that it was because of his race that the employer had failed to provide him with timely written feedback.
Employment tribunal decision
The employment tribunal held that the reverse burden of proof had passed to the employer in respect of both complaints. In relation to the two complaints, the tribunal held:
Rejection for promotion: this complaint was dismissed. The tribunal were satisfied that race played no part in S’s failed application for promotion because he had scored less well than the four successful candidates; and
Delay in giving feedback: the tribunal upheld this complaint. The tribunal took account of the vague verbal feedback given initially, considered the delay giving S written feedback was poor, criticised the quality of the very brief written feedback S had eventually been given. The tribunal noted that this was the fourth time S had unsuccessfully applied for promotion, that all staff holding that position and the four successful candidates were White. These factors combined led the tribunal to conclude that the burden of proof had shifted to the employer. The tribunal went on to hold that the employer had failed to give cogent reasons for its delay giving S timely feedback and upheld this aspect of his claim.
The employer successfully appealed against that decision.
EAT decision
The EAT upheld the employer's appeal and held that the tribunal had erred in its application of the burden of proof.
At the first stage of applying the burden of proof test, tribunals are entitled to consider the employer's explanation for the treatment, including whether there was any outward conduct from which discrimination could be inferred, such as any inconsistent or demonstrably false reasons for the treatment.
The question of the employer's subjective motivation had to be left to the second stage of the burden of proof test. The tribunal had erred by relying on some irrelevant factors which, although potentially relevant to S’s primary claim (that he had not been promoted because he was Black), did not logically suggest that the employer’s delay in giving S timely feedback was because of his race.
The EAT allowed the employer’s appeal, concluded that the burden of proof did not shift to the employer, and set aside the tribunal’s finding of race discrimination.
