Court of Appeal hears 3 test cases on burden of proof

The Court of Appeal has, this afternoon, handed down judgment in the three test cases on the newly introduced shifting burden of proof in discrimination claims.

The Court has issued 'revised Barton guidelines' (as an annex to the decision).

The three key points arising from the judgment are:

(1) When deciding whether the complainant has proven facts from which the tribunal COULD conclude, in the absence of an adequate explanation, that the Respondent has committeed an act of discrimination, it is IMPERMISSIBLE to take into account the employer's explanation at that stage. The employer's explanation only engages at stage 2, i.e. whethern it proves it did not commit an act of discrimination (paras. 21-22)

(2) The case of Webster v Brunel University (see bulletin 14/1/05) should be overturned. The burden of proof does not shift just because somebody at the other end of the telephone says the word 'Paki', and that COULD have been an employee of the Respondent. The Claimant must still prove that the alleged discriminator has treated him/her less favourably (paras. 25-29).

(3) Paragraph 10 of the Barton guidelines, which requires the employer to show that its conduct was "in no sense whatsoever" on grounds of sex, race or disability, is correct. A later decision of the EAT amending paragraph 10, lowering the test to "not signifcantly influenced by", is wrong.

The judgment is not yet up on the internet; I will send another bulletin out with the web link when it is posted on the Court of Appeal website.

[Thanks to Daniel Ellis of Baker & McKenzie for sending me the transcript. Please note the transcript, whilst having been handed down, is still subject to editorial corrections].