Education institutions, like any other large employers, are likely, at some stage, to face discrimination claims from employees or former employees, and managers may be called upon to attend employment tribunal hearings. In the majority of discrimination cases considered by tribunals, there will be no clear-cut evidence that the alleged discrimination has taken place. Instead, there will typically be conflicting evidence reflecting the very different perceptions of those involved. This was recognised by the Court of Appeal in the leading judgment on this issue, which acknowledged that: ¡°It is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases discrimination will not be an intention but merely based on the assumption that ¡®he or she would not have fitted in¡¯.¡±

As a result of this absence of clear-cut evidence, the test for establishing discrimination (ie, the ¡°burden of proof¡±) will be central to any discrimination case.

A two-stage test

In order to address the evidential difficulties in discrimination cases, the tribunals have developed a two-stage test for proving discrimination. First, the claimant (usually the employee or former employee) must establish a case that, on its face, amounts to discrimination (a ¡°prima facie¡± case). If he is able to do so, the burden of proof will then shift to the respondent (in most cases, the employer), who will have to show that it did not discriminate against the claimant.

At the first stage of this process, the tribunal will consider what inferences it could draw from the evidence presented and whether this could amount to discrimination. Such inferences may be drawn from, for example, an evasive or equivocal reply to a discrimination questionnaire, the breach of relevant code of practice or evidence from the employer¡¯s equal-opportunities monitoring data. If the burden does move to the respondent then it must prove, on the balance of probabilities, that the treatment was ¡°in no sense whatsoever¡± on the grounds of sex, race, age and so on. A bare explanation for the allegedly discriminatory conduct will not be enough; it must be backed by evidence.

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No ¡®prima facie¡¯ case?

The Employment Appeal Tribunal recently considered this test and, in particular, what evidence was required for the burden of proof to pass to the respondent. The case involved a claim of discrimination by a police officer against his employer. The officer claimed that he had been subjected to less favourable treatment by this employer arising from a dispute over travel expenses and a failure to secure promotion. He alleged that the reason for this treatment was because he had previously brought a claim of discrimination against his employer and that he was therefore being ¡°victimised¡± (a category of discrimination).

The employment tribunal found that one of the individuals who was allegedly responsible for the victimisation had not been aware of the previous discrimination claim and therefore this could not have influenced his conduct. Accordingly, there was no victimisation. It reached this finding on the basis that not only did the individual deny that he had knowledge of the discrimination claim but there was no evidence to rebut this denial. Consequently there was insufficient evidence for the burden of proof to shift to the respondent employer. The Employment Appeal Tribunal agreed that, in a case where there was a total absence of positive evidence of discrimination, the burden of proof would not pass and therefore the tribunal¡¯s decision was correct in this respect.

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This case reinforces the fact that the claimant must produce some evidence of discrimination before the burden will transfer.

Other authorities show that claimants will need to show more than a mere difference in treatment and difference in, for example, race or sex for the burden of proof to pass. Also, the evidence must give rise to more than an ¡°intuitive hunch¡± of discrimination. In addition, in most cases, unreasonable behaviour by an employer will not be enough to establish a prima facie case of discrimination. However, employers will be at greater risk in such circumstances, particularly if they are unable to offer an explanation for their unreasonable conduct.