Proving a Link Between Unfair Treatment and Discrimination Can Be Tough

It may be relatively straightforward to prove you have suffered unfair treatment at work, but establishing that such treatment results from discrimination can pose a far greater challenge. This was certainly so in an Employment Appeal Tribunal (EAT) case concerning a forklift truck driver.

The man launched proceedings following two fractious confrontations between him and colleagues in the car park of the premises where he worked for a logistics company. He alleged that he was falsely and maliciously accused of misconduct arising from the incidents and that the way in which the company dealt with the matters was unfair to him. The company disputed his account of the incidents and denied that he had suffered discrimination of any kind.

Following a preliminary hearing, an Employment Tribunal (ET) struck out his claims of direct race discrimination and race-related harassment on the basis that they stood no reasonable prospect of success. Whilst acknowledging that he felt genuinely aggrieved, the ET noted that he had put forward no explanation as to how his alleged unfair treatment might be linked to his race.

Upholding his appeal against that outcome, the EAT noted that it is well established that unfair treatment is not necessarily to be equated with discriminatory treatment.

However, it is equally well established that discrimination may be inferred if there is no other explanation for unreasonable behaviour. Taken at its highest, there were features of the man’s case which might be capable of giving rise to such an inference.

The ET should therefore have considered whether the burden of proof shifted so that the company was obliged to show an absence of discrimination. Given the draconian nature of the strike out order, the ET had failed to sufficiently consider whether the man’s claims were plainly and obviously bound to fail. The matter was remitted for reconsideration by a freshly constituted ET.