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.

Whistleblowing Nurse’s Dismissal ‘Grossly Unfair’, Tribunal Rules

There are few things more serious in an employment context than sacking a whistleblower for performing a valuable public service. The Employment Appeal Tribunal (EAT) made that point in the case of a highly regarded nurse who was treated grossly unfairly for doing what she considered to be her duty. The nurse had an unblemished employment record stretching to 38 years and had received commendations for her leadership skills, positivity and enthusiasm. On a number of occasions, she expressed…

Disability Discrimination and Hypothetical Comparators – Guideline Ruling

Workplace disability discrimination claims often hinge on arguments that a disabled person was treated less favourably than a hypothetical comparator. As a guideline Employment Appeal Tribunal (EAT) decision showed, the circumstances that are imputed to such a comparator are, in many cases, of decisive importance. The case concerned a warehouse operative who was disabled by degenerative disc disease in her lower back. She was in near-constant pain and could not bend, walk or sit for more than…

Unfairly Dismissed? You Must Take Reasonable Steps to Mitigate Your Loss

Those who are unfairly dismissed are required to take reasonable steps to mitigate their financial loss, usually by hunting for a new job. The Employment Appeal Tribunal (EAT) made that point in the case of a woman who made not one application for fresh employment in the three years after she was sacked. The woman, who worked for a financial services company, launched Employment Tribunal (ET) proceedings after she was dismissed, purportedly on grounds of redundancy. Following a liability…