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EAT Gives Guidance on Burden of Proof in Discrimination Cases

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Over the years, case law regarding the burden of proof in race discrimination claims has led to much confusion.

Under the Equality Act 2010, which superseded the Race Relations Act 1976, if there are facts from which the Employment Tribunal (ET) could decide, in the absence of any other explanation, that an employer has committed a discriminatory act, it is then necessary for the employer to prove otherwise in order to defend the claim.

In  Veolia Environmental Services UK v Gumbs , the Employment Appeal Tribunal (EAT) upheld a race discrimination claim brought by a black refuse worker and provided guidance on this recurrently thorny issue.

Marlon Gumbs began working for Veolia Environmental Services UK in 2003 as an agency worker and later became an employee. He claimed to have repeatedly expressed a wish to qualify to drive a rubbish collection vehicle, but his employer failed to consider him for this role, even after he had subsequently paid for his own training and passed the LGV test, and there was a shortage of drivers. In addition, in April 2009, ostensibly because of budget cuts, he was taken off rubbish collection duties and demoted to work on foot with a street barrow, although this arrangement only lasted three days.

At the ET, Mr Gumbs successfully argued that he had been denied promotion and assessment for a driving role on grounds of his race following a personality clash with his manager. The ET also found that his employer had provided a 'superfluity' of reasons, not all of which were consistent, as to why Mr Gumbs had been transferred to working on foot and in so doing had failed to provide satisfactory evidence for its conduct.

On appeal, it was submitted that the ET had wrongly reversed the burden of proof so as to require the employer to provide a non-discriminatory explanation for the different treatment meted out to Mr Gumbs. It was argued that there was no evidential basis for that approach. Evidence of unreasonable behaviour is not enough to conclude that an act has discriminatory potential and the ET's decision was perverse.

However, in dismissing the appeal, the EAT noted that no other employee had been treated in the same way as Mr Gumbs and judged that the ET had not erred in taking into account that there had been differing and inconsistent explanations of its conduct put forward by his employer when determining that the burden of proof had been reversed. The EAT did not think that the ET had misdirected itself as to Mr Gumb's demotion or driving assessment and had reached findings that were open to it on the evidence before it.

Acknowledging that the burden of proof and inferences of discrimination remain 'difficult and controversial' topics, the EAT found that such issues are intensely fact sensitive and that the decisions of ETs in such cases should only be interfered with 'in the clearest case of misdirection or perversity'.

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