In Webster v Brunel University, the EAT has decided what it describes as a "novel point" on the shifting of the burden of proof in discrimination cases.
The Claimant was on the telephone to a co-employee. She overheard someone else in the room say 'Paki'. There was no evidence on whether that person was an employee or a visitor.
The tribunal found that she had failed to establish that the individual was an employee, so the burden of proof did not shift to the Respondent to disprove discrimination.
The EAT (Burton P. presiding) reversed this decision and remitted the case. They held (para. 34) that once the employee established a prima facie case that the speaker COULD have been an employee, the burden shifts and it is for the Respondent to DISPROVE that the speaker was an employee.
Helpfully, the decision reviews all the recent cases on the shifting burden of proof - and so should become a key case when dealing with this tricky issue.
Webster v Brunel University