Discrimination claims and the shifting burden of proof

The EAT found that a tribunal failed to address the shifting burden of proof from employee to employer in a race discrimination claim, but still rejected the employee’s appeal.

In a discrimination claim, the burden of proof starts with the claimant. Once the claimant has established sufficient facts from which a tribunal could decide that, in the absence of any other explanation, there has been a breach of the Equality Act 2010, the burden of proof shifts to the respondent to provide a non-discriminatory explanation of events.

The facts of Atif v Dolce & Gabbana are as follows. Mrs Atif worked for the Italian fashion brand Dolce & Gabbana (D&G) as a client advisor from 2013 to 2020. She was dismissed for abusing the sickness absence policy. She would use her full sickness entitlement every year and take sick leave around her holidays to extend her time off. After her holiday request for 31 December 2019 was rejected, she told colleagues that she would call in sick on this day instead.

Mrs Atif is Algerian and Arab speaking. She brought a claim for race discrimination in the employment tribunal, alleging that she had been treated less favourably by her employer because she was not Italian. The Tribunal rejected her claim, finding that she had failed to discharge the burden of proof to D&G. Mrs Atif appealed this point to the Employment Appeal Tribunal (EAT).

The EAT considered the case of Field v Steve Pye and Co (KL) Ltd, which established that significant evidence of discrimination cannot be ignored when considering whether the burden of proof is shifted. Applying this principle to Mrs Atif’s case, the EAT found she had raised various facts which could amount to discrimination, including:

• that the entire management team of the employer was Italian;
• that Mrs Atif submitted a grievance about her Italian manager just before a disciplinary process was commenced, and that her grievance was never concluded; and
• the suggestion that Italian employees were treated less favourably, for example, Mrs Atif’s Italian manager had also taken sick days around other absences.

Accordingly, the EAT held that the Tribunal should have concluded that the burden of proof had shifted, before going on to consider whether D&G could provide a non-discriminatory explanation.

Despite this, the EAT dismissed Mrs Atif’s appeal, because it found the ultimate conclusion reached by the Tribunal (that there had been no discrimination by D&G) was not perverse. The Tribunal had still considered all of the evidence in detail, so although the route it had taken was “not ideal”, it would have reached the same decision regardless.

This case is a reminder to employers of how the shifting burden of proof operates in discrimination claims, and the importance of being able to evidence why a particular event or action was not related to a protected characteristic of an employee.

If you would like advice in relation to a discrimination claim or on ensuring your processes as an employer are non-discriminatory, please get in touch at [email protected].

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