Two recent cases, Base Childrenswear v Otshudi and Raj v Capita Business Services, considered the rules regarding the burden of proof in claims brought under the Equality Act 2010.

By way of reminder, typically, a two-stage approach to the burden of proof applies:

• Stage 1 – can the Claimant establish a prima facie case of discrimination? If not, the claim fails at this hurdle.  If it can, the burden shifts to the Respondent to show the reason for the discriminatory treatment.
• Stage 2 – is the Respondent’s explanation sufficient to show that it did not discriminate against the Claimant?

However, in some cases, there may be good reason for the Tribunal to depart from this approach, for example, where the basic facts are not in dispute, a Tribunal may consider whether the Respondent is able to prove, on the balance of probabilities, that they did not commit the unlawful act.

In the recent Court of Appeal case of Base Childrenswear v Otshudi, Miss Otshudi was dismissed from Base Childrenswear, as her line manager suspected her of stealing. However, Base Childrenswear told Miss Ostshudi her termination was by reason of redundancy.  Miss Otshudi believed she had been dismissed because of her race and submitted a grievance and appealed against her dismissal.  Base Childrenswear chose not to respond to either.

Miss Otshudi proceeded to bring a racial harassment claim. Shortly before the hearing, Base Childrenswear changed their case and confirmed that Miss Otshudi was dismissed because her line manager believed she was stealing or about to steal some stock (although this had not been raised with her).  Base Childrenswear said the redundancy reason was simply used to “minimise the potential confrontation” but confirmed that Miss Osthudi’s dismissal had nothing to do with her race. The Tribunal did not accept the employer’s version of events and held that Miss Otshudi’s dismissal was an act of racial harassment.  In reaching this conclusion, the Tribunal determined that the burden of proof had shifted to Base Childrenswear because Miss Osthudi had shown that there were facts from which the Tribunal could conclude, in the absence of any other explanation, that her dismissal was because of her race. The fact that Base Childrenswear had waited some 15 or so months after Miss Osthudi’s termination before putting forward the true reason for her dismissal helped to establish this prima facie case.  Turning to stage two, the Tribunal rejected Base Childrenswear’s argument that Miss Otshudi’s dismissal had nothing to do with her race, due to their being very weak evidence to support the suspected theft and that they had not questioned Miss Otshudi about it.

The EAT dismissed Base Childrenswear’s appeal, and Base Childrenswear appealed to the Court of Appeal. The Court of Appeal rejected this further appeal, holding that the Tribunal was entitled to infer that there was a racial element to the dismissal, given Base Childrenswear’s attempted cover-up. The limited evidence or investigation entitled the Tribunal to conclude that while Miss Otshundi’s line manager’s view about the theft may have been genuinely held, it was made on the basis of stereotypical assumptions that black Africans are likely to steal.

This case emphasises to employers the potential cost of dishonesty, even if well-intended.  While this will not automatically shift the burden of proof, it is clear that the Tribunal took a fairly dim view of the misrepresentation of the dismissal grounds.  Had Base Childrenwear been able to properly evidence the reason for their decision from the outset, the outcome would have been very different.

In Raj v Capita Business Services, the Claimant was terminated during his probation period on performance grounds.  He proceeded to bring a claim for sexual harassment and/or harassment related to sex, amongst other things, in relation to the treatment he had received from his female line manager.  Mr Raj claimed that his manager had massaged his shoulders, neck and back on two or three occasions. The Tribunal held that while the conduct was unwanted and created an intimidating, hostile, degrading, humiliating or offensive environment, the claim failed because the conduct was not sexual in nature. The Tribunal considered that the conduct related to a “gender neutral” part of the body and it was also relevant that the massages took place in an open plan office. The Tribunal concluded that the manager’s actions were the result of “misguided encouragement” and there was no evidence of the manager acting in this way with anyone else, either male or female.

Mr Raj appealed on he ground that the Tribunal had failed to properly apply the rules for shifting the burden of proof.

The EAT held that the Tribunal’s approach was correct. The Tribunal had correctly asked whether there were facts from which they could conclude that the unwanted conduct related to Mr Raj’s sex. The Tribunal had determined there were not and therefore the prima facie case (Stage 1) was not satisfied. As such, the burden of proof did not shift to Capita Business Services.

The decision in this case turns entirely on the facts and while Mr Raj’s claim did not succeed, a similar claim with a slightly different set of circumstances may well have done. This case also invites the question as to whether the Tribunal would have reached a different conclusion had it been a male manger and a female employee. Either way, we would advise you to make sure your managers are provided with sufficient training as to what is deemed acceptable conduct and to ensure any harassment policy you have in place is up to date.

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