You cannot win a discrimination claim just by showing you were treated differently.
“Claimant's appeal on the burden of proofIn a legal claim, whose job it is to prove what. In a discrimination case, once you point to facts that, left unexplained, would suggest discrimination, the burden shifts to your employer to show the ... test dismissed.”
You need more than a protected characteristicOne of the nine characteristics listed in the Equality Act 2010 against which it is unlawful to discriminate. They include age, disability, race, sex, religion or belief, and sexual orientation. If yo... and a bad outcome to shift the burden onto your employer.
- Note down, as things happen, what was said or done around the time of the decision, not only the decision itself.
- Compare how you were treated with colleagues who do not share your protected characteristic, since a real contrast strengthens your case.
- Get advice before you bring a claim if your situation is not clear cut, so someone can help you judge whether your evidence is strong enough.
The situation
An employee working as a banker was made redundant shortly after she returned from maternity leave, having scored the worst in a redundancyA dismissal that occurs when your employer no longer needs the work you do, either because the business is closing, a workplace is closing, or the requirement for employees to carry out that kind of w... selection process. She brought claims for sex discrimination, victimisationBeing treated badly because you've raised a complaint, supported someone else's complaint, or done something else the law protects, such as raising a grievance or whistleblowing. It is unlawful in its... and unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi..., including a complaint that her employer had not carried out a health and safety risk assessment covering her pregnancy. The case went through a lengthy tribunal hearing before reaching the Court of Appeal on the question of how the burden of proof in discrimination claims should work.
What the court found
The Court of Appeal confirmed that in a discrimination claim, the burden of proof shifts to your employer in two stages. First, you have to point to facts from which a tribunal could properly conclude, if your employer cannot explain them, that discrimination took place. Clearing that first hurdle is what triggers your employer's duty to prove a non-discriminatory reason. According to the court, a protected characteristic on its own, sex for example, combined with a particular treatment, will not satisfy that test. That combination only shows a possibility of discrimination, not something a tribunal could properly act on. This built directly on the two-stage test set out in Igen Ltd v Wong under what is now the Equality Act 2010The main piece of legislation protecting employees from discrimination at work. It covers nine protected characteristics including age, disability, sex, race, and religion, and makes it unlawful for a....
Madarassy v Nomura International Plc. [2007] EWCA Civ 33. Court of Appeal. January 2007.