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…

Jan 26, 2021

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.

ET Failed to Consider Context in Victimisation Claim, EAT Rules

The Employment Appeal Tribunal (EAT) has upheld a woman’s appeal against the dismissal of her complaint of victimisation, finding that the Employment Tribunal (ET) had adopted too narrow a definition of what could constitute a protected act and had not sufficiently analysed the context in which the complaint that was said to be a protected act was made. The woman had worked for a pharmacy business since 2001. In 2018 she moved to another of the business’s stores, where she was the only black…

Workplace Harassment Can Be Downright Cruel – You Don’t Have to Take It

Harassment in the workplace can descend into downright cruelty and employers who fail to stamp out such behaviour can expect to pay a heavy reputational and financial price. In a case on point, a sandwich shop worker who endured her line manager’s wounding comments received substantial compensation. The woman, who was in her probationary period at the shop, was being treated for a number of medical conditions, which amounted to a disability. Her numerous allergies required her to carry an…

Collective Bargaining Agreements and Direct Inducements to Employees

The ability of trade unions to negotiate effectively on their members’ behalf would be greatly diminished if employers were permitted to bypass collective bargaining agreements and offer inducements directly to employees. The Employment Appeal Tribunal (EAT) made that point in a ruling which stands as a warning to employers. The case concerned sometimes acrimonious pay negotiations between employers on an industrial site and their unionised workforce. A collective bargaining agreement was in…